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PAC Issues Further Decisions on Public Comment and Participation for Remote Meetings Under OMA

Board Governance Coronavirus

As discussed in previous alerts posted on March 16 and March 18, Illinois Governor J.B. Pritzker passed an Executive Order suspending certain Open Meetings Act (OMA) requirements in the wake of COVID-19. Since the issuance of the Executive Order, the PAC has issued multiple opinions clarifying its stance on the legality of virtual board meetings. On May 29, 2020, the PAC issued two additional opinions that offer further insight into its position on the issues of public comment and remote attendance for virtual meetings.

In the first opinion, the PAC upheld a school board’s decision to limit public comment to e-mail communications. Specifically, the school board’s notice requested those who wished to submit a comment to send an email by 2:00 p.m. to a designated Board representative, five hours prior to the meeting start time. The complaint to the PAC criticized limiting public comment to email and the board’s 2:00 time frame for receiving emails. The PAC, however, found that the board’s practice complied with the OMA. First, the PAC found that the school board did not identify the 2:00 time as a hard deadline or otherwise indicate that the board would refuse to accept public comments after that time. Further, the PAC concluded that although a board may have technology that could allow the public to verbally address the board in real time, under the current conditions, it is reasonable to limit public comment to e-mail that is read aloud by the public body at the meeting.

In its second opinion involving the same district and complainant, the PAC found no OMA violation where the school board asked the public to submit comments via e-mail one hour before its remote meeting commenced. Additionally, the PAC addressed the concern that Zoom was not an appropriate platform for public meetings because use of Zoom requires participants to submit names and e-mail addresses prior to access. The PAC disagreed that the Zoom participation requirements violated the OMA, finding that (1) although Zoom collected participants’ names and e-mail addresses, it did not provide them to the District; (2) the District did not have the ability to disable the requirement to enter names and e-mail addresses; and (3) Zoom did not require verification of individual identities upon submission. In other words, a participant uncomfortable with providing his or her own name or email address could provide a pseudonym and still participate in the meeting. In coming to its decision that no further action was required, the PAC considered these factors, as well as the school board’s indication that it would provide alternative access by phone in the future for those that did not wish to submit information.

If you have questions regarding the Open Meetings Act and its applicability to virtual meetings, please contact a Franczek attorney.