Informal Committee of City is Subsidiary Body

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Dear Mr. Riordan and Mr. Schweickert:

This binding opinion is issued by the Attorney General pursuant to section 3.5(e) of the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2024)). For the reasons discussed below, this oBce concludes that the City of Peru (City) Pool Committee (Committee) is a subsidiary body subject to the requirements of OMA.

BACKGROUND

On March 23, 2025, Mr. Tom Riordan submitted a Request for Review alleging that the Committee violated OMA by improperly holding private meetings:

The city of Peru has been holding committee meetings but they are closed to the public. The committee was appointed by the mayor[], contains city oBcials, and city citizens. It's to discuss building a new pool because we passed a referendum to instruct the city to build a pool. They've been meeting for several months now without access for the public to attend.”!

On March 24, 2025, Mr. Riordan further stated that the Committee met on March 10, 2025,” and several other times since the referendum passed in November 2024.° He alleged that "[f]inancial reports were given on the status of the general fund as it pertains to a pool and use of tax dollars[,]" and "[djesigns and locations were discussed[,]" but the Committee did not compile meeting minutes or otherwise adhere to the requirements of OMA.* On March 26, 2025, the Public Access Bureau sent a copy of the Request for Review to City Mayor Ken Kolowski along with a letter’ requesting, for this oBce's conDdential review, copies of any notices, agendas, minutes, and recordings of any Committee meetings that were held within 60 days of the submission of Mr. Riordan's Request for Review. This oBce also requested that the City provide a written response to Mr. Riordan's allegation that the Committee improperly held private meetings that were required to be open to the public pursuant to OMA. In particular, this oBce asked the City to address speciDc factors that courts have used to analyze whether an entity constitutes an advisory body or subsidiary body.® On April 3, 2025, City Corporation Counsel Scott Schweickert provided this oBce with a written response, maintaining that the Committee is an "informal advisory On May 16, 2025, the Public Access Bureau extended the time in which to issue a binding opinion by 21 business days, to June 24, 2025, pursuant to section 3.5(e) of OMA.’°

ANALYSIS

"In order that the people shall be informed, the General Assembly Dnds and declares that it is the intent of [OMA] to ensure that the actions of public bodies be taken openly and that their deliberations be conducted openly." 5 ILCS 120/1 (West 2024).

Section 1.02 of OMA (5 ILCS 120/1.02 (West 2024)) deDnes the term "public body" to include, in relevant part:

[A]ll legislative, executive, administrative or advisory bodies of the State, counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees or commissions of this State, and any subsidiary bodies of any of the foregoing including but not limited to committees and subcommittees which are supported in whole or in part by tax revenue, or which expend tax revenue, except the General Assembly and committees or commissions thereof. (Emphasis added.)

Under the plain language of this deDnition, committees of cities are subsidiary bodies subject to OMA. The City argues that the Committee has an informal nature that excludes it from the requirements of OMA. Accordingly, this oBce will examine the four primary factors that courts consider in determining whether an entity is a "subsidiary body" of a public body: "(1) the extent to which the entity has a legal existence independent of government resolution, (2) the degree of government control exerted over the entity, (3) the extent to which the entity is publicly funded, and (4) the nature of the functions performed by the entity." Befter Government Ass'n v. Illinois High School Ass'n, 2017 IL 121124, ] 26. "[N]o single factor is determinative or conclusive, but as the deDnition indicates, the key distinguishing factors are government creation and control." Better Government Ass'n, 2017 IL 121124, { 26.

While the City's response to this oBce did not include any materials documenting Committee meetings, the City did not dispute the allegation that the Committee had been meeting in private, including on March 10, 2025. The City explained the history of e]orts to build a new City pool since 2013.'! The City stated that replacing the municipal pool "has been a topic of signiDcant public debate[,]" and that "[c]ertain community members, * * * colloquially known as 'Friends of the Peru Pool,' have advocated in favor of constructing a new municipal pool."'* The City also explained that City residents approved an advisory referendum on the November 5, 2024, general election ballot that asked whether the City should construct and operate a municipal swimming pool funded by real estate tax revenue.!? The City explained that on November 18, 2024, the Committee of the Whole discussed the results of the referendum:

It was suggested that an informal committee be assembled to review pool studies and materials previously prepared for the City, to research and review other recently completed municipal pool projects in Illinois, and to generally perform a preliminary assessment of the potential designs, costs, and locations for a new municipal pool. This informal committee would then advise and present its recommendation to the City Council and public for a more focused and productive discussion.!"“1 The minutes of the March 11, 2025, meeting of the Peru City Council state, in relevant part:

Alderman O'Sadnick reported the pool committee has been meeting once a week to continue to gather information along with working with Kmetz Architect and Director of Engineering and Zoning Eric Carls. Alderman O'Sadnick reported they are working toward the goal of having open meetings with Dndings. Alderman Moreno further asserted the meetings have been productive but not complete, !!>]

As additional background, Alderman O'Sadnick, who, as discussed further below, was named to the Committee by Mayor Kolowski, publicly posted an update about the Committee's activities on Facebook on March 14, 2025; his remarks included the following:

Last November, a city-wide referendum to build and pay for a municipal pool utilizing funds from Peru's hotel/motel tax revenue passed by a near 70-30 margin. The Council has now been obliged to address the issue. The Peru Pool Committee was formed.

* * * [T]here have not yet been any open meetings. Once we get to that point, the open meetings will be publicized, and all will be encouraged to attend and make their voices and suggestions heard. The committee has decided that having the meetings open to the public at this time would not be productive towards the Dnal goal:

To produce and present a plan to responsibly build a municipal swimming pool that has a reasonable chance of getting at least four of the eight Aldermen to vote ‘yes’.

In furtherance of that goal, the committee has been able to have blunt, honest and closed discussions regarding costs, Dnancing, potential locations, maintenance, buildings, pool size, water features, lighting, lap lanes, fencing, shade from the sun, etcetera.!!6!

'S[Peru] City Council, Regular Meeting, March 11, 2025, Minutes 1.

Alderman O'Sadnick further explained that "[t]he Committee has entered into an agreement with Kmetz Architects of LaSalle[ ]" to examine the location options and present potential layouts, and "[a]fter that happens, we should then have enough site and Dnancial information to hold an open meeting to present to the citizens of Peru. That public input will then be valuable in Dnalizing our conclusions to present to the full City Council for a Dnal vote[.]""’

Accordingly, the Committee has operated as if it may—but is not required to— hold meetings that are open to the public. This oBce will apply each factor that courts have recognized as relevant to whether an entity is a subsidiary body to determine whether the Committee should have complied with the requirements of OMA at its March 10, 2025, meeting, and must begin to do so.

The Committee's Legal Existence Independent of Government Resolution Applying the Drst factor, the City acknowledged in its response to this oBce that the Committee does not have an independent legal existence.'* This factor weighs in favor of the Committee being a subsidiary body of the City, as the City convened the Committee and the Committee originated from the City's planning process for anew municipal pool. On the other hand, the City stated that no ordinance or resolution formally established the Committee.!? The City contended that the Committee is not subject to the requirements of OMA because it is an "informal advisory committee[.]"?° The Illinois Supreme Court has concluded that mere informality does not render OMA inapplicable. People ex rel. Difanis v. Barr, 83 Il. 2d 191, 201 (1980). In Difanis, the Court rejected the argument that a gathering of a quorum of city council members at the home of one of the members before a scheduled city council meeting constituted an informal political caucus that was not subject to the requirements of OMA. Difanis, 83 Ill. 2d at 201. There was no agenda for the gathering, no votes were taken, city council members were not compensated for their time, and the discussion included party business and an upcoming election in addition to city council business. Difanis, 83 Ill. 2d at 198. Nevertheless, the Court held that the General Assembly "intended to include unoBcial or informal meetings within the coverage of the Act[,]"

and that "the Act was intended to apply to more than meetings of full bodies or duly constituted committees." Difanis, 83 Il. 2d at 200-01. The Court emphasized that the purpose of OMA would be defeated if a public body could conduct public business without complying with the Act as long as it operated as a committee that had not been formalized through legislation. Difanis, 83 Ul. 2d at 201 ("[T]o allow the nine defendants to circumvent the Act simply because they designate their meeting as an informal gathering or informal caucus would be to thwart the intent of the Act."). Although Difanis concerned a meeting of the members of a city council, which was indisputably a public body, it is instructive that the Supreme Court recognized that labeling gatherings as informal does not shield deliberations about public business from the requirements of OMA.

Degree of City Control Over the Committee With respect to the second factor—the degree of government control—the City contends that it does not control the Committee, characterizing it as "an independent group of volunteers interested in the construction of a new municipal swimming pool in the City of Peru."*! The City stated that Mayor Kolowski "informally appointed" to the Committee Ms.

Sherry Mayszak, a member of the community who led the referendum e]ort for the municipal pool, and that the Committee consists of her, another private "citizen with experience operating a municipal swimming pool; Alderman Andy Moreno, Alderman Rick O'Sadnick, and Adam Thorson, the City's Director of Parks, Recreation and Special Events."** The City claimed that it "maintain[ed] compliance with OMA ]" by having "no more than two elected oBcials" serve on the Committee.”

This oBce has reviewed materials posted on the City's website,”* including past City Council and various City committee meeting agendas and meeting minutes. The November 18, 2024, Committee of the Whole meeting minutes re_ect that Mayor Kolowski "suggested forming a pool committee" and "said he would be the one deciding who would" serve on the Committee with Ms. Mayszak, noting that she was a former City alderwoman.”> Additionally, the City's Director of Engineering and Zoning, Eric Carls, explained that his "oBce would help support and facilitate the meetings and the process."”° The November 25, 2024, Public Works Committee meeting minutes further re_ect that the Mayor "named" to the Committee four of the Dve members identiDed by the City in its response to this oBce.*’

The Mayor's appointment of speciDc people to the Committee, albeit without a City Council vote, illustrates that the Committee's membership is controlled by the City. Notably, there is no assertion that the Mayor appointed the Committee to advise him individually, rather than the City Council. See Pope v. Parkinson, 48 Ill. App. 3d 797, 799 (1977) (committee of students and faculty selected by chancellor to advise him on administration of university arena not required to comply with OMA in part because the committee was not "accountable to, any public body of the State."). The inclusion of two alderpersons as well as the City's Director of Parks, Recreation and Special Events on the Committee—a quorum—re_ects a degree of governmental control that is both signiDcant and common for municipal committees.”® The March 11, 2025, City Council meeting minutes also conDrm that the Committee has been "working with Kmetz Architect[s] and Director of Engineering and Zoning Eric Carls."*? Additionally, in its response to this oBce, the City acknowledged that the City's Director of Finance has met with members of the Committee "to provide information to assist them with fact-Dnding and information gathering."*? The Committee's actions have led to the City Council's approval of a preliminary study for a municipal pool in the amount of $7,500.!

Thus, City employees are involved in Committee meetings in multiple facets:

Dnance, engineering and zoning, and parks and recreation, if not other areas. The Committee's recommendations are subject to the City Council's approval, as re_ected by the City Council's approval of the pool study. The Committee is not a freestanding entity seeking to construct a Committee's purpose concerns only a City pool, which is why City oBcials and administrators are directly involved and exercise control in a manner that would be uncharacteristic of a private enterprise. Accordingly, the information reviewed by this oBce re_ects that the City does exert governmental control over the Committee.

Extent to Which the Committee is Publicly Funded In its response to this oBce, the City asserted that the Committee is not publicly funded and that its members are unpaid volunteers. It is unclear whether the Committee uses any public resources for its activities such as by holding meetings on City property. Still, committees created and controlled by public bodies receive at least some indirect public funding by virtue of being part of that unit of government. Salaried city oBcials have devoted time to establishing the Committee and supporting its activities. For example, the Mayor appointed the members of the Committee and two members of the City Council as well as the City's Director of Parks, Recreation and Special Events serve on the Committee.

Nature of the Functions Performed by the Committee In its response to this oBce, the City described the purpose of the Committee as “conduct[ing] the basic preliminary leg work to assess and recommend potential designs, features, costs, and locations for a new pool to present to the City Council and public for a more focused and productive discussion."2* Although the City did not speciDcally address whether the Committee performs governmental functions, the City acknowledged that the Committee is tasked with assessing the potential designs, costs, and locations for a new municipal pool. Exploring such options and reporting Dndings to the governing body of a municipality is a quintessential role of a municipal committee. The function of the Committee is inherently the type of work that is performed by the City as a corporate authority. Indeed, various City oBcials and employees participate in the Committee's meetings and activities. Additionally, the Illinois Municipal Code (65 ILCS 5/1-1 et seg. (West 2024)) provides that the development of a municipal pool is a governmental function:

The corporate authorities of the municipality, or the speciDed board when designated, has the power to provide, maintain, equip, and operate swimming pools as a part of such a recreation system or playgrounds or recreation centers in any public park or land or building dedicated or set apart as provided in this Division 95. The corporate authorities or the speciDed board Because the City is using the Committee to perform this function, the Committee's work is governmental in nature.

Based on the above application of the factors recognized as relevant by the Illinois Supreme Court in Better Government Ass'n—most notably the governmental function performed by the Committee and the degree of control exercised by the City—the Committee is a subsidiary body of the City that is subject to all of the requirements of OMA.

FINDINGS AND CONCLUSIONS

After full examination and giving due consideration to the arguments presented, the Public Access Counselor's review, and the applicable law, the Attorney General Dnds that:

1) On March 23, 2025, Mr. Tom Riordan submitted a Request for Review alleging that the Committee improperly held meetings that did not comply with the requirements of OMA. Mr. Riordan alleged that the Committee held one such improper meeting on March 10, 2025. It is undisputed that Mr. Riordan's Request for Review was timely Dled and otherwise complies with the requirements of section 3.5(a) of OMA.

2) On March 26, 2025, the Public Access Bureau sent a copy of the Request for Review to the City. The Public Access Bureau also sent the City a letter requesting copies of any notices, agendas, minutes (in draft form if necessary), and recordings of any meetings that occurred within the 60 days before Mr. Riordan submitted his Request for Review. The inquiry letter also requested a detailed written answer to the allegation that the Committee improperly held meetings that were not open to the public in accordance with OMA during that time period.

3) On April 3, 2025, the City Corporation Counsel provided this oBce with a written answer.

4) On April 3, 2025, the Public Access Bureau forwarded a copy of the City's written answer to Mr. Riordan and notiDed him of his opportunity to reply. On April 7, 2025, Mr. Riordan submitted a reply.

*3Because the Committee is a subsidiary body subject to the requirements of OMA, this oBce 6) A"public body" for purposes of OMA is deDned to include advisory and subsidiary bodies of cities, such as committees.

7) The Committee has held multiple meetings, including one on March 10, 2025, since City residents voted in the November 2024 general election to approve a referendum supporting the development of a City-owned pool. It is undisputed that the Committee meetings have not been open to the public.

8) Based on an analysis of the factors that the Illinois Supreme Court recognized as relevant in Better Government Ass'n, the Committee is a subsidiary body of the City and therefore must follow all of the requirements of OMA, including providing advance notice of its meetings (5 ILCS 120/2.02 (West 2024)), keeping written minutes (5 ILCS 120/2.06(a) (West 2024)), and providing members of the public with an opportunity to address Committee members (5 ILCS 120/2.06(g) (West 2024)).

9) Accordingly, the Attorney General concludes that the Committee violated the requirements of OMA in connection with the March 10, 2025, meeting, by not complying with the requirements of OMA.

In accordance with these Dndings of fact and conclusions of law, the Committee is directed to take immediate and appropriate action to comply with this opinion by taking measures to ensure all future meetings comply with the requirements of OMA, including properly posting meeting notices and agendas, allowing opportunity for public comment, and preparing meeting minutes. Committee members shall also complete the OMA electronic training curriculum. 5 ILCS 120/1.05(b) (West 2024).

This opinion shall be considered a Dnal decision of an administrative agency for the purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2024). An aggrieved party may obtain judicial review of the decision by Dling a complaint for administrative review in the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision, naming the Attorney General of Illinois and Mr. Tom Riordan as defendants. See 5 ILCS 120/7.5 (West 2024).

Very truly yours,

KWAME RAOUL ATTORNEY GENERAL

Brent D. Stratton Chief Deputy Attorney General hereby certiDes that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 25-007) upon:

Mr. Tom Riordan 1527 Eighth Street Peru, Illinois 61354 [email protected] Mr. Scott J. Schweickert Corporation Counsel City of Peru 1901 Fourth Street Peru, Illinois 61354 [email protected] by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on June 24, 2025.

Steve Silverman

Deputy Division Chief

~ Steve Silverman Deputy Division Chief Public Access & Opinions Division OBce of the Attorney General

115 South LaSalle Street Chicago, Illinois 60603 (312) 814-6756