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PAC: Remote Meetings and Email-Only Public Comment OK Under OMA

Board Governance Coronavirus

As we discussed in alerts on March16 and March 18, a recent Executive Order by Illinois Governor J.B. Pritzker suspended certain Open Meetings Act (OMA) requirements to allow flexibility on issues of quorum and remote attendance during board meetings. Guidance from the Illinois Attorney General’s Public Access Counselor (PAC) signaled that the PAC would support virtual meetings if boards provide access to members of the public, including an opportunity to comment to the board. Two recent PAC decisions provide additional insight into the PAC’s stance on these issues. In them, the PAC reinforced the right of public boards to hold remote meetings without a quorum of board members physically present. The PAC also found that a meeting that only allowed public comment by email sent two hours before the meeting began was appropriate under the OMA. 

On March 27, the PAC issued a non-binding opinion rejecting the claim that a scheduled school board meeting in which only one board member was physically present and six members participated via teleconference violated the OMA. Of course, prior to the Governor’s order, such a meeting would have violated the OMA, which requires a quorum of members of the public body to be physically present. The PAC found that the board did not violate the OMA, however, because it acted in accordance with Executive Order 2020-7, which allowless than a quorum of members to be physically present, and allowed its members to participate remotely. 

On April 6, the PAC issued another non-binding opinion approving a county board’s decision to limit public participation to email, which were required to be submitted to the board two hours before the meeting began. The PAC emphasized that public comment by email was appropriate in these unique circumstances and authorized pursuant to the Governor’s Executive Order. The PAC further stated that the OMA has never required public bodies to answer questions or otherwise interact with the public. Because the Board provided the email information in its agenda along with a link for the public to view the meeting live, its actions complied with the OMA’s public comment requirements under the present circumstances 

The PAC has now clearly held that the Governor has the authority through the Executive Orders to temporarily suspend OMA rules. No court has opined on this topic to date. We continue to advise that until the General Assembly definitively amends the OMA, Boards addressing more controversial matters, such as Reductions in Force, bond approvals, or controversial issues, where it is essential that the meeting be above reproach, should contact a Franczek attorney to discuss best options. 

For any questions about how to implement remote meetings during the coronavirus disease 2019 (COVID-19), contact your Franczek attorney.