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According to IL PAC, Informal Virtual COVID-19 “Briefings” Subject to the OMA

Board Governance Coronavirus

A recent decision of the Public Access Counselor reminds public bodies that the OMA applies to gatherings of public bodies even if the meeting is intended to be informal and does not involve any action by the public body.

2020 PAC 62918 addressed non-public video and telephone “briefings” attended by City of Chicago council members in March and April 2020. The conferences addressed public safety, economic recovery, housing assistance, and education initiatives already in effect, as well as general information regarding the COVID-19 pandemic.

The intent of the calls was to provide administrative updates to and receive and answer questions by Council members. The aldermen who attended did not intend to participate in a legislative capacity. Nor did they have a chance to substantively discuss the administration officials’ remarks, to weigh or examine their proposals, or to reach any consensus on a course of action or decision as a group. According to the City, the matters discussed were not public business within the scope of the OMA. For these reasons, the City did not open the calls to the public or notice the calls as “meetings” under the OMA. ProPublica Illinois submitted a Request for Review to the PAC regarding the conferences in May 2020.

The PAC found that the briefings were meetings of the public body subject to the OMA. The PAC’s decision was based on three points:

  • According to the PAC, the aldermen represented their constituents at the meetings by virtue of their positions as elected members of the Council, and so participated in a “legislative capacity.”
  • The aldermen “deliberated” at the meeting. According to the PAC, “deliberation” includes “not only collective discussion” but also “the collective acquisition and exchange of facts preliminary to [an] ultimate decision.” The PAC found notable the fact that the aldermen could express their thoughts and recommendations during the calls. 
  • Finally, the deliberations concerned “public business,” which the PAC explained broadly includes not only subjects on which a public body acts but also information relating to matters that a public body could potentially act upon in the future. According to the PAC, the issues discussed at the briefings—including the management and response to a public health threat—constituted public business. The PAC highlighted the fact that the Council took final action on ordinances related to the pandemic at later meetings in support of the conclusion that “public business” was addressed at the meeting under review. 

Whether a gathering is a “meeting” as used in the OMA depends on the peculiar facts in each situation. This decision reminds public bodies that while attendance by a majority of a quorum of a public body at an informational meeting does not always trigger the OMA, if a majority of a quorum is present and members make deliberational statements or discuss public business among themselves, the OMA likely does apply.

For more information about compliance with the OMA requirements for public meetings, contact the authors of this post or any other Franczek attorney.