Open Meetings and Government Transparency in the Wake of COVID-19

Daniel Bourgault

Associate Editor

Loyola University of Chicago School of Law, JD 2022

On March 16, 2020, Governor JB Pritzker issued Executive Order 2020-07 which, among other things, suspended certain provisions of the Illinois Open Meetings Act (“OMA”), an act which ensures transparency regarding meetings, discussions, and actions taken by public actors concerning public business.  The executive order was a response to the practical challenges to compliance with the OMA’s in-person and physical quorum requirements facing local governments as they grapple with restrictions on public gatherings due to the public health threat of COVID-19, declared an emergency in Illinois by Pritzker’s Gubernatorial Disaster Declaration on March 12, 2020.  Since March, Pritzker has continued to re-issue and extend COVID-19-related executive orders and the disaster declarations, including the executive actions identified above and their restrictions and suspensions applicable to the OMA, most recently through Executive Order 2020-55 on September 18, 2020.  While the suspensions through executive order have provided a temporary solution allowing local governments to comply with the OMA in such an emergency situation, the Illinois legislature took it upon itself to address the issue permanently by amending the OMA statute.

Regulations and standards set forth by the OMA

Open Meetings Laws are in place at the federal and state level in order to protect all citizens’ right to have access to and witness government action.  More specifically, the Illinois OMA statute sets forth the regulations Illinois local governments and their agencies must comply with when conducting any meetings in which government action is discussed or taken.  The standards set forth by the OMA apply to any meeting of a “public body” as defined in the Illinois Freedom of Information Act (“FOIA”), which includes “all legislative, executive, administrative, or advisory bodies of the State”, state educational institutions, and municipalities, or any board, committee or subsidiary body of the State or local governments.  In order for a gathering to be considered a “meeting” under the OMA, it: (1) must be conducted in person or by video or audio conference, telephone, electronic means (electronic mail/chat/instant messaging) or other means of contemporaneous communication; (2) include at least a majority of a quorum of a public body; and (3) be held for the purpose of discussing public business.

If there is a meeting of a public body as defined above, there are several regulatory requirements that must be met.  Broadly, the OMA requires that a public notice of the meeting be published, that the meetings be open to the public and scheduled at times and places convenient to the public, that written minutes be taken of the meeting, that the members of the public have the opportunity to address the public body, and a quorum of members of the public body must be physically present at the meeting site.  There are thirty-six specific exceptions outlined in the statute (5 ILCS 120/2(c)) which, when applicable, allow a public body to meet in a closed session during the time which the specific exempt subject matter is being discussed.

Adaptation of Open Meetings Act to adjust for COVID-19 challenges

In May 2020, as it became apparent COVID-19 would continue to present a public health crisis for the foreseeable future, the Illinois legislature took action to permanently address the issue of compliance with the OMA’s regulations in the event of an emergency where in-person meetings were not possible or prudent.  The Illinois House and Senate passed PA 101-0640, which the Governor signed into law (effective as of June 12, 2020), which amended the OMA itself to codify the emergency regulatory standards.  The amendment set forth in PA 101-640 permits public meetings subject to the OMA to occur electronically and provides changes to physical quorum requirements in the event that there is a disaster declaration related to public health concerns by the Governor or Director of the Illinois Department of Public Health (IDPH).

The amendment specifically proscribes that a meeting of a public body may be conducted by audio or video conference, without the physical presence of a quorum of the members in the event that a physical gathering has been rendered unfeasible due to a disaster which has been officially declared a disaster by declaration of either the Governor or the Director of the IDPH.  The amendment also sets forth the standards that must be complied with if this exception is invoked.  These include a requirement that there must be: (1) at least one member of the public body at the regular physical meeting location; (2) the public must have access to the link or dial-in number to observe the observe, listen in, and address the public body if they wish; (3) notice requirements must be provided at least 48 hours ahead of time and be posted on the entities website, and (4) public bodies holding open meetings under these rules must also keep a verbatim record of all their meetings in the form of an audio or video recording which must be made available to the public.

Consequences of failing to comply with OMA regulations and potential issues going forward

If someone believes there may be an OMA violation, they may file a Request for Review with the Public Access Counselor’s office within 60 days of the alleged violation.  If there is non-compliance or probable cause to believe non-compliance will occur, anyone may also bring a civil action in circuit court within sixty days of the alleged violation.  A court adjudicating a potential OMA violation may order, among other relief, that a meeting be open to the public, grant an injunction against future violations, order release of certain minutes, or, most significantly, declare a final action taken in a closed session null and void.  This could lead to ordinances, zoning appeals, and any other number of local governmental actions being void, possibly having a significant effect on local affairs.

As we continue to rely heavily on electronic communication, members of public bodies must take care when communicating with one another regarding public business.  Recently, the Illinois Attorney General’s Office concluded that Mayor Lightfoot violated the Open Meetings Act by hosting conference calls with alderman early in the shutdown triggered by COVID-19. The City had argued the meetings did not violate the Act because the aldermen were acting as community-based first responders and no legislative deliberation or action took place, but since public business was discussed and a majority of a quorum was “present”, those arguments were shot down.

Electronically held meetings also present a couple of potential issues, including internet outages – if there is an internet outage during an open meeting and members of the public are not able to rejoin, there may be a violation of the OMA.  Another potential problem is ensuring there is an efficient system for public participation; when conducting a meeting over zoom or another telecommunication platform, the public body must make accommodations to allow the public to address the public body.  Finally, as the COVID-19 restrictions relax, physical locations of meetings present an additional potential problem; space must be large enough to accommodate any members of the public who wish to attend while also adhering to social distancing guidelines.  Ultimately, between the fact that anyone could bring a suit in the event of a violation and the potential effects of failing to comply, being aware of potential issues that may pose a challenge to compliance is critical.  As we continue to deal with COVID-19 and social distancing, local governmental entities must take measures to ensure transparency continues to be a priority and that their agencies are in compliance with OMA regulations.