PAC Issues Non-Binding Opinions Regarding Applicability of OMA to Board Committees

The Illinois Public Access Counselor (PAC) recently issued two non-binding opinions concerning the applicability of Open Meetings Act (OMA) requirements to board committees.

In 2023 PAC 75604, the PAC determined that a Board Committee did not violate the OMA when it failed to post a special meeting agenda continuously for 48 hours before the meeting. At issue was the agenda for a special meeting of the Executive and Legislative Committee of the Vermilion County Board, which the Committee posted at noon the day of the meeting—only five hours in advance of the meeting start time. Section 2.02 of the OMA requires a public body to post the meeting agenda in the principal office of the public body and at the location where the meeting is to be held at least 48 hours in advance of the meeting. This same notice and posting requirement also applies to special meetings, unless the special meeting is held in the event of a bona fide emergency, is a rescheduled regular meeting, or a reconvened meeting.

Here, the Committee acknowledged that it failed to post a copy of the special meeting agenda on the Board’s website in a timely manner. Nevertheless, the PAC found that there was no violation of the OMA because, under the plain language of the OMA, only the governing body of a public body is required to post meeting notices on the public body’s website. Because the governing body here was the Board and not the subsidiary Committee of the Board, the OMA did not require the Committee to post its meeting agenda on the Board’s website. Therefore, the PAC concluded that there was no OMA violation. While a Board Committee may elect to post meeting materials in the interest of transparency, failing to do so does not violate the OMA. On another subject, and while not determinative for this decision, the PAC opined that a public body’s use of a scrolling LED screen (where notices and other bulletins are displayed on a rotation) to post meeting notices raises questions about compliance with OMA notice and posting requirements. To avoid the uncertainty of using scrolling screens to fulfill such requirements, the PAC suggested that a public body should post a paper copy of the agenda at a location where it is continuously viewable from outside the meeting location, such as on or near the front door or an outward-facing window.

In 2023 PAC 75602, the PAC found that a Board Committee violated the OMA when discussions regarding public business occurred outside formal meetings, but in the presence of a majority of a quorum. At issue were two gatherings of three members of the six-member Committee, during which the Committee members discussed strategies related to wind farm construction in the county and retaining an attorney in response to wind farm construction. While the mere presence of a majority of a quorum at a gathering does not trigger the requirements of OMA, the PAC will look to the individual circumstances of the gathering to determine whether it falls within the definition of a “meeting” under the OMA. The PAC reasoned that a gathering can constitute a meeting under the OMA when a majority of a quorum of members holds a collective discussion at that gathering, during which they exchange information in anticipation of possibly taking future action, even if the members do not take formal action at the gathering. Here, because the Committee consists of six total members, four members constitute a quorum, and three members constitute a majority of a quorum. Although the members did not take any formal action during either informal gathering, the PAC held that both gatherings in which three members of the Committee engaged in deliberative discussions regarding Committee business constituted a “meeting” subject to the requirements of the OMA. Given this decision, Board Committee members should assess whether their discussions during informal gatherings could qualify as a “meeting” under OMA, such that adherence to OMA requirements is required.

If you have any questions about these non-binding PAC decisions or OMA compliance generally, please reach out to one of the authors of this post or any Franczek Attorney.