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Muting Mishap: Illinois PAC Opinions on Use of “Sidebars” During Virtual Meetings

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During an in-person meeting of a public body, it is not uncommon for individuals to have sidebar discussions. Such discussions do not necessarily violate any rules or laws, including the Illinois Open Meetings Act. But what happens to sidebars when a meeting moves online? According to a recent PAC binding opinion (PAC Op. 20-007), a public body may not mute a meeting to have a sidebar, even if the conversation would have been appropriate during an in-person meeting. The decision is a reminder to public bodies to read OMA strictly to avoid muting or other mishaps during virtual meetings.

Virtual meetings are nothing new for Illinois public bodies. On June 12, 2020,  Governor Pritzker signed Public Act 101-640 amending the Open Meetings Act. The amendment allows public bodies to hold virtual board meetings without the physical presence of a majority of a quorum of members at the meeting location during a disaster declaration relating to public health concerns. Among other requirements, the law mandates that “any interested member of the public” be able to “contemporaneously hear all discussion, testimony, and roll call votes.”

In its decision, the PAC offered a strict interpretation of the requirement that the public must hear “all” discussion. The decision involved a village board meeting. The village board decided not to allow members of the public to attend the board meeting in-person, but broadcasted it live via Zoom. During the meeting, the village mayor directed a trustee to mute the Zoom recording briefly. While the meeting was muted, the mayor and the village clerk discussed whether the board could discuss a personnel matter in open session. The sidebar discussion lasted approximately sixty seconds. A member of the public claimed the village board violated OMA by not allowing members of the public to physically attend the meeting at village hall and by muting the sidebar discussion.

In its opinion, the PAC affirmed the village board’s decision to not allow members of the public at the meeting. Here, the mayor had the authority under OMA to exclude the public from in-person attendance due to the ongoing pandemic.

The PAC further found that the board sufficiently provided members of the public access to the meeting through its live Zoom broadcast. The PAC, however, found that the village board violated OMA when it muted the Zoom broadcast for the sidebar discussion. It noted that the new remote meeting procedures expressly require that members of the public be able to contemporaneously hear all open session discussions. Although nothing would prohibit a similar “sidebar” discussion at an in-person meeting, there is no exception to the requirement that members be heard at a remote meeting. As such, the village board violated OMA when it intentionally muted discussions during open session.

Although the PAC opinion related to the use of the muting function, the reasoning in the opinion displays that the PAC strictly construes OMA procedural requirements during virtual board meetings. Public bodies should work with legal counsel to understand the intricacies of holding meetings in the virtual environment.