PAC unable to confirm village water/sewer committee violated OMA over private culvert inspection

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Dear and Mr. Winkel:

On September 14, 2017, the Board responded by denying the allegations. On September 22, 2017, this office forwarded a copy of the response to he did not reply.

DETERMINATION

OMA is intended " to ensure that the actions of public bodies be taken openly and that their deliberations be conducted openly." 5 ILCS 120/ 1 ( West 2016).

Section 2( a) of OMA (5 ILCS 120/2( a) ( West 2016)) provides that "[ a] ll meetings of public bodies shall be open to the public unless excepted in subsection (c) and closed in accordance with Section 2a." Section 1. 02 of OMA (5 ILCS 120/ 1. 02 ( West 2016)) defines a meeting" subject to the Act as:

A] ny gathering, whether in person or by video or audio conference, telephone call, electronic means ( such as, without limitation, electronic mail, electronic chat, and instant messaging), or other means of contemporaneous interactive communication, of a majority of a quorum of the members of a public body held for the purpose of discussing public business or, for a 5 -member public body, a quorum of the members of a public body held for the purpose of discussing public business.

If a gathering of members of a public body meets this definition, then all of the requirements of OMA apply, including the proper posting of notice and an agenda ( 5 ILCS 120/ 2. 02( a) ( West 2016)), holding the meeting at a specified time and place that is convenient and open to the public ( 5 ILCS 102/ 2. 01 ( West 2016)), keeping minutes ( 5 ILCS 120/ 2. 06( a) ( West 2016)), and allowing public comment ( 5 ILCS 120/ 2. 06( g) ( West 2016)).

The Office of the Attorney General has stated that " whether a gathering falls within the definition of meeting as used in the Act, would depend upon the peculiar facts in each situation." 1974 I11. Att'y Gen. Op. No. S- 726, issued March 22, 1974, at 126. " In theory, there is no absolute prohibition against the members of a public body attending an ' informational meeting' without triggering the application of" OMA, as long as the members do not make d] eliberational statements" or engage in " unrecorded discussions" concerning public business amongst themselves. Ill. Att'y Gen. Op. No. 95- 004, issued July 14, 1995, at 10- 11. In that opinion, the Attorney General concluded that "[ t] he mere fact that a majority of a quorum of the members of a public body attend[ ed] and participate[ d] in a bona fide presentation on new legislative developments in an area of public concern within the scope of the public body' s power to act" did not make the presentation subject to OMA, but that the extensive discussions of requirements of OMA. ( Emphasis in original.) I11. Att' y Gen. Op. No. 95- 004, at 10- 11; see also Nabhani v. Coglianese, 552 F. Supp. 657, 661 ( N. D. Ill. 1982) ( a gathering does not constitute a meeting for purposes of OMA when there is " no examining or weighing of reasons for or against a course of action, no exchange of facts preliminary to a decision, [ and] no attempt to reach accord on a specific matter of public business.").

In its September 14, 2017, response to this office, the Board explained that Trustee Randy Gigl, Chairman of the Committee, scheduled a visit to s residence through text message for August 8, 2017. The Board stated that "[ t]he purpose of the visit was to Zook at a collapsed culvert beneath driveway."' On August 8, 2017, the Board stated, Trustee Gigl and another Committee member, Paul Hess, " measured the culvert and reviewed the physical damage to the culvert. Neither Gigl nor Hess had notes to supply. Both Hess and Gigl estimated the total time they visited was no more than ten minutes[.]" 2 Further, the Board explained that the culvert was " discussed during a public meeting of the [ Committee] on Augusti10, 2017. The August 8 visit served to prepare both trustees for their committee meeting by giving them a recent look at the situation. i3 In an email sent on September 27, 2017, the Board clarified that, due to the size of the Village (approximately 1, 500 residents), it only has one full-time and two part-time maintenance employees. It stated that while it asks for its maintenance employee' s advice, " it is not unusual for trustees to visit the site of issues to observe the situation first hand, especially to help make sense of specifics that may not be clear from photographs or reports. * * * They schedule a visit, observe the situation, then deliberate during a public meeting.i4 The information available to this office indicates that the visit on August 8, 2017, was intended to be informational for the Committee members. This office has not received facts demonstrating that deliberative discussions of public business occurred at property on that date. It appears that the two Committee members were at residence to gather information in order to then deliberate at the public meeting two days later. Accordingly, this office is unable to conclude that the August 8, 2017, visit constituted a meeting of the Committee subject to the requirements of OMA.

This office cautions, however, that if a majority of a quorum of the members of a public body, such as a committee of the Board, engages in a deliberative discussion of public business while visiting a site such as property on August 8, 2017, that event would become a meeting, triggering the requirements of OMA. Deliberative discussions of public business have the potential to arise during such a gathering even if they are not anticipated. Therefore, if Committee members must conduct property inspections before meetings, they may w sh to consider doing so individually rather than in groups of two or three.

The Public Access Counselor has determined that resolution of this matter does not require the issuance of a binding opinion. This letter serves to close this matter. If you have any questions, please contact me at ( 312) 793- 0865.

Very truly yours,

MARIE HOLLISTER

Assistant Attorney General Public Access Bureau