Improper Private Meeting

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Dear Ms. Czajkowski and Mr. Meyer:

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 o?ce concludes that the Washington County Board (Board) violated OMA by holding an improper private meeting on April 30, 2025.

BACKGROUND

On May 15, 2025, Ms. Mary Czajkowski submitted a Request for Review to the Public Access Bureau alleging that the Board improperly held a meeting on April 30, 2025, without following the requirements of OMA.! In particular, she asserted that the Board did not post an agenda or prepare minutes of an informational meeting hosted by Pattern Energy, a On May 22, 2025, the Public Access Bureau sent a copy of the Request for Review to the Board and asked it to respond to Ms. Czajkowski's allegations and address whether a majority of a quorum of Board members attended the April 30, 2025, event.? This o?ce asked the Board to explain whether the subjects discussed at the event constituted discussions of public business regarding Washington County and to provide copies of any notice, agenda, meeting minutes, and recordings of the event.* On May 30, 2025, the Washington County State's Attorney submitted a written response on behalf of the Board.° On that same date, this o?ce forwarded a copy of the Board's response to Ms. Czajkowski and notiDed her of her opportunity to reply.° Ms. Czajkowski did not submit a reply.

On July 1, 2025, the Public Access Bureau sent a second letter to the Board asking for a detailed description of what occurred at the April 30, 2025, event, including how Pattern Energy presented information and how Board members participated in the gathering.’ This o?ce also asked the Board to provide a list of attendees, copies of any notes taken by the attendees, and copies of any information Pattern Energy provided to the attendees.® This o?ce also requested copies of any correspondence to or from any Board members related to the April 30, 2025, event, and minutes of any Board or committee meetings where the April 30, 2025, event, Pattern Energy, or the Kaskaskia Renewables project were discussed.”

On July 14, 2025, the Board provided a written answer in response to this o?ce's July 1, 2025, correspondence, as well as copies of the Board's March 11, 2025, meeting agenda and minutes, and copies of Dve e-mails pertaining to the April 30, 2025, event.!! On July 16, 2025, this o?ce forwarded a copy of the Board's additional response to Ms. Czajkowski.'* On July 20, 2025, Ms. Czajkowski submitted a reply.!? On July 22, 2025, this o?ce requested that the Board provide a copy of the rules that it referenced in its May 30, 2025, response.'* Later that day, the Board provided via e-mail a copy of Chapter 1 of the Washington County Code, which covers, among other things, Board procedures. '°

ANALYSIS

"It is the public policy of this State that public bodies exist to aid in the conduct of the people's business and that the people have a right to be informed as to the conduct of their business." 5 ILCS 120/1 (West 2024). "The Open Meetings Act provides that public agencies exist to aid in the conduct of the people's business and that the intent of the Act is to assure that agency actions be taken openly and that their deliberations be conducted openly." Gosnell v. Hogan, 179 Ill. App. 3d 161, 171 (1989).

For the requirements of OMA to apply, a gathering must constitute a "meeting"

as deDned by section 1.02 of OMA (5 ILCS 120/1.02 (West 2024)):

"Meeting" means any gathering, whether in person or by video or audio conference, telephone call, electronic means (such If a gathering of public body members meets the deDnition of a "meeting," then the procedural safeguards and requirements of OMA apply. Those measures include proper posting of notice and an agenda (5 ILCS 120/2.02 (West 2024)), holding the meeting at a speciDed time and place that is convenient and open to the public (5 ILCS 120/2.01 (West 2024)), keeping minutes (5 ILCS 120/2.06(a) (West 2024)), and allowing public comment (5 ILCS 120/2.06(g) (West 2024)).

The Washington County Code provides that the Board consists of 15 members,!® and that a majority of Board members constitutes a quorum.!’ Accordingly, eight Board members constitute a quorum and Dve members constitute a majority of a quorum. Pursuant to the deDnition of "meeting" set forth above, if Dve members of the Board met on April 30, 2025, for the purpose of discussing public business, that gathering would be subject to the requirements of OMA.

Based on the materials the Board provided to this o?ce, planning for the April 30, 2025, event began in an e-mail exchange between Diane Miller, the Community Outreach Consultant for Pattern Energy, and Board Member Larry Unverfehrt. On February 28, 2025, Ms. Miller wrote to Mr. Unverfehrt, "Diogo [Botelho, Pattern Energy Business Development Manager] shared that the two of you had a good conversation about Pattern's proposed project and that you thought another dinner to provide updates on the project would be welcomed by County Board Members."!* She then asked about the logistics of inviting the Board and asked if the invitation was "something that you, or Chairman Meyer, could announce[ | at the March 11 County Board meeting and encourage attendance?"!? On March 1, 2025, Mr. Unverfehrt replied to Ms. Miller that it "would be good to have an update on this project. My meeting with Diogo was very interesting, and I feel the full Board would like a[n] update and opportunity to ask ‘Washington County Code § 1-3-1 (May 2024).

Washington County Code § 1-3-7 (May 2024).

The March 11, 2025, Board meeting minutes reUect that "Diane, with Pattern Energy, would like to oVer a meet and greet with the Board to bring them any updates they have on energy. Unverfehrt told the [B]oard it would be well worth the time, if they are oVering."” The minutes also state, "Chairman Meyer would like to encourage the Board to be more proactive with energy[.]"?° The Board provided this o?ce with copies of e-mail invitations to the April 30, 2025, event that the Board members received. The Board explained that the invitations came "in the form of an email sent to Washington County Clerk Shari Hempen, who then forwarded same to each Board member."*4 The invitation received on April 17, 2025, stated:

Please join Pattern Energy on April 30 at 6:00 p.m. [Uor a discussion of their proposed energy project, Kaskaskia Renewables, at the Boiler Room Restaurant. Diogo Botelho, Business Development Manager, and Hunter Delor, Development Analyst, will provide an overview of the proposed project, updates on project progress, the projected tax revenue beneDts to Washington County, and answer questions. Project website: http://patternenergy.com/projects/Kaskaskia-renewables/!**!

The invitation indicated that the doors would open at 6:00 p.m. for drinks and appetizers followed by dinner and discussion at 6:30 p.m.?° The Kaskaskia Renewables website linked in "[rlepresents a private investment of $1 billion, bringing widespread economic beneDts to the community[]" and could create "500-700 construction jobs," permanent operational jobs, and that "[t]he stable, long-term funding will contribute to education, community services, roads, and Drst responder capabilities."

The Board's response to this o?ce included a list of the seven Board members who attended the April 30, 2025, event.°° The response described the event as follows:

A power-point presentation was given by Pattern Energy that showed geographical areas in which Pattern has acquired lease options, geographical areas in which Pattern is currently seeking lease options, and a proposed timeline for the project. During the presentation, various questions were asked by attendees, including Board members. Handouts of the power-point presentation were made available to attendees. * * * There was no discussion of County procedures or permit applications. The meeting was an opportunity for Pattern Energy to present information on Pattern's negotiations with private land owners concerning the Kaskaskia Renewables project.?!!

The Board stated that although Pattern made copies of the PowerPoint presentation available, no Board members retained a copy and that "[n]o notes taken by any Board members appear to exist."3?

In its responses to this o?ce, the Board maintained that the April 30, 2025, event was not a "meeting" of the Board. The Board stated that the event "was not held for the purpose of discussing public business[,]" but rather for "Pattern Energy to discuss a proposed energy project referred to as Kaskaskia Renewables."°° The Board continued, [a]t this time, no applications or Dlings for any project by Pattern Energy have been submitted to Washington County. There is currently no Washington County public business concerning Pattern Energy or the Kaskaskia Renewables project. The meeting was not held for the purposes of negotiating or discussing Washington County policy and procedure.!°71 In her reply, Ms. Czajkowski questioned the lack of available materials from the event and stated that "[fJull transparency should be the standard, not the exception, in matters aVecting our community."*8 It is undisputed that a majority of a quorum of the Board attended the April 30, 2025, Pattern Energy event. Although the Board asserts this was simply an informal presentation The mere presence of a majority of a quorum of a public body's members at a gathering does not make the meeting subject to the requirements of OMA. See University Professionals of Illinois v. Stukel, 344 Ill. App. 3d 856, 868 (2003) (OMA is not "triggered every time public o?cials meet and converse."). "Rather, the Act is designed to prohibit secret deliberation and action on business which properly should be discussed in a public forum due to its potential impact on the public." People ex rel. Difanis v. Barr, 83 Ill. 2d 191, 202 (1980). In Nabhani v. Coglianese, 552 F. Supp. 657, 660-61 (N.D. Ill. 1982), the court elaborated:

A "meeting" under the Act, has been variously described as a gathering "designed to discuss or reach an accord with regard to public business,"[citation], or as "collective discussion...and exchange of facts preliminary to the ultimate decision." [Citation] Webster's Third New International Dictionary (1976) deDnes "deliberate" as follows: "to ponder or think about with measured careful consideration and often with formal discussion before reaching a decision or conclusion."

The Attorney General has concluded that "informal sessions or conferences designed for the discussion of public business[ ]" are meetings subject to the requirements of OMA. III. Att'y Gen. Op. No. S-726, issued March 22, 1974, at 5. That opinion cited with approval the California Appellate Court's ruling that a "meeting" under California's version of OMA’? "connotes not only collective discussion, but the collective acquisition and exchange of facts preliminary to the ultimate decision." Sacramento Newspaper Guild v. Sacramento County Board of Supervisors, 263 Cal. App. 2d 41, 47-48, 69 Cal. Rptr. 480, 485 (Cal. Ct. App. 1968). The court further explained:

An informal conference or caucus permits crystallization of secret decisions to a point just short of ceremonial acceptance. * * *. Only by embracing the collective inquiry and discussion stages, as well as the ultimate step of o?cial action, can an open meeting regulation frustrate these evasive devices. (Emphasis added.) Sacramento Newspaper Guild, 263 Cal. Ct. App. 2d at 50, 69 Cal.

Rptr. at 487.

In Binding Opinion 23-003, the Attorney General concluded that a "Meet and Greet" gathering involving a majority of a quorum of a library board's trustees constituted a "meeting" subject to OMA's requirements. Ill. Att'y Gen. Pub. Acc. Op. No. 23-003, issued March 14, 2023. In that matter, the library board contended that the event was an informal Cal. Gov. Code § 54950-54960 (West 1966).

003, at 6-7.

The Board maintains that the April 30, 2025, event did not involve the discussion of public business because there were no speciDc items concerning Pattern Energy pending before the Board. The requirements of OMA cannot be read so narrowly. The deDnition of "meeting" in OMA does not require "deliberation," meaning "[t]he act of carefully considering issues and options before making a decision or taking some action[.]"*° Instead, "meeting" is deDned as "any gathering of a majority of a quorum of the members of a public body held for the purpose of discussing public business." (Emphasis added.) 5 ILCS 120/1.02 (West 2024).

OMA does not deDne "public business." In City of Champaign v. Madigan, 2013 IL App (4th) 120662, 4 31, the Illinois Appellate Court examined the meaning of the term in the context of a Freedom of Information Act (FOIA) (5 ILCS 140/1 et seg. (West 2024)) request involving communications sent and received by members of a public body during an open meeting. The court found that the term "public business" has a plain and ordinary meaning: "to qualify as a public record a communication must Drst pertain to "business or community interests as opposed to private aVairs." City of Champaign, 2013 IL App (4th) 120662, § 31 (quoting Merriam—Webster's Collegiate Dictionary 941 (10th ed. 2000)). Because "[b]oth [OMA and FOIA] ensure the public's access to information concerning the conduct of public bodies, except in limited circumstances, [they] must be construed together." Copley Press, Inc. v. Board of Education for Peoria School District No. 150,359 Ill. App. 3d 321, 325 (2005). Accordingly, the term "public business" under OMA means "business or community interests as opposed to private aVairs."

The impact of Pattern Energy's Kaskaskia Renewables project on Washington County is undoubtedly a matter of public business, as the project would aVect the county's tax revenues, energy resources, economy, and environment, among other things. There is no indication that the Board members who attended the April 30, 2025, Pattern Energy event were there in their private capacities. To the contrary, the Board spoke at its March 11, 2025, meeting about its intention to learn more about the project*! and later invited Pattern Energy to its May 30, 2025, event, a majority of a quorum of Board members nonetheless engaged in the collective inquiry phase of deliberations by gathering and exchanging information in anticipation of possibly taking future action with regard to the Kaskaskia Renewables project.

The requirements of OMA apply not only to those gatherings in which public bodies take formal actions, but also to discussions of public business for the purpose of collecting information. See 5 ILCS 120/1 (West 2024) ("The General Assembly further declares it to be the public policy of this State that its citizens shall be given advance notice of and the right to attend all meetings at which any business of a public body is discussed or acted upon in any way.) (Emphasis added.) Under these circumstances, this o?ce concludes that the gathering of seven Board members on April 30, 2025, constituted a "meeting" subject to the requirements of OMA. Accordingly, because the Board did not provide advance public notice of the April 30, 2025, meeting or otherwise follow OMA's procedures and requirements, the Board violated OMA on that date.

FINDINGS AND CONCLUSIONS

After full examination based on the evidence available, the Public Access Counselor's review, and the applicable law, the Attorney General Dnds that:

1) On April 30, 2025, seven members of the Washington County Board attended an informational presentation hosted by Pattern Energy.

2) On May 15, 2025, Ms. Mary Czajkowski submitted a Request for Review to the Public Access Bureau alleging that the Board violated OMA by attending the informational presentation without adhering to the advance notice requirements of OMA. Ms. Czajkowski's Request for Review was timely Dled and otherwise complies with the requirements of section 3.5(a) of OMA (5 ILCS 120/3.5(a) (West 2024)).

3) On May 22, 2025, the Public Access Bureau forwarded a copy of the Request for Review to the Board and asked it to provide copies of any notices, agendas, minutes, and recordings from the April 30, 2025, presentation. This o?ce also requested a written response to the allegation that this gathering constituted an improper private meeting, including an explanation of the extent to which the Board discussed the transaction of public business.

4) On May 30, 2025, the Board furnished its written response. The same day, this o?ce forwarded a copy of the Board's response to Ms. Czajkowski; she did not reply.

5) On July 1, 2025, the Public Access Bureau requested additional information from the Board regarding the April 30, 2025, informational presentation.

7) On July 14, 2025, the Board provided an additional written response, copies of e-mail correspondence related to the presentation, and the agenda and minutes from the March 11, 2025, Board meeting, where a Board member mentioned the opportunity to attend a presentation hosted by Pattern Energy.

8) On July 16, 2025, this o?ce forwarded a copy of the Board's additional response to Ms. Czajkowski; she replied on July 20, 2025.

9) Section 1.02 of OMA deDnes a "meeting" in relevant part, as "any gathering * * * of a majority of a quorum of the members of a public body held for the purpose of discussing public business[.]" The full Board consists of 15 members. Accordingly, eight Board members constitute a quorum and Dve members are a majority of a quorum.

10) Ifa gathering of public body members is determined to be a "meeting," then all the requirements of OMA apply, including proper posting of notice and an agenda, holding the meeting at a speciDed time and place that is convenient and open to the public, keeping minutes, and allowing public comment.

11) Seven members of the Board attended the April 30, 2025, presentation, in which Board members engaged in an interactive discussion with representatives from Pattern Energy about its proposed Kaskaskia Renewables energy project, a subject which constitutes public business of the Board with potentially wide ranging impacts on Washington County.

12) Because discussions of public business for the purpose of collecting information are the collective inquiry of the deliberative process, the April 30, 2025, presentation constituted a "meeting" subject to the requirements of OMA.

In accordance with these Dndings of fact and conclusions of law, the Public Access Bureau concludes that the Board violated OMA by holding a meeting on April 30, 2025, without providing advance public notice or complying with the other requirements of OMA. The Board is directed to generate and approve written minutes for the meeting. Alternatively, if the Board determines that generating minutes that thoroughly summarize the information presented and discussed is unfeasible due to a lack of notes and other documentation of the meeting, the Board may invite Pattern Energy to recreate the presentation during an open meeting that fully complies with the requirements of OMA. The Board is also directed to ensure that future gatherings in which Dve or more of its members engage in deliberative discussions of public business are held in full compliance with the requirements of OMA.

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 Czajkowski as defendants. See 5 ILCS 120/7.5 (West 2024).

Very truly yours,

KWAME RAOUL ATTORNEY GENERAL

By: Via to ae R. Douglas Rees Chief Deputy Attorney General CC: The Honorable Crystal May State's Attorney Washington County, Illinois 125 East Elm Street Nashville, Illinois 62263 hereby certiDes that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 25-011) upon:

Ms. Mary Czajkowski 26005 Highline Road Ashley, Illinois 62808 [email protected] The Honorable David Meyer, Chairman Washington County Board 101 East St. Louis Street Nashville, Illinois 62263 [email protected] The Honorable Crystal May State's Attorney Washington County, Illinois 125 East Elm Street Nashville, Illinois 62263 Crystal. [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 August 12, 2025.

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Steve Silverman Deputy Division Chief

Steve Silverman Deputy Division Chief Public Access & Opinions Division O?ce of the Attorney General

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