City of Carlinville City Council violated Open Meetings Act by meeting without public notice

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Dear Mr. Kraft and Mr. Bertinetti:

2017, the City Council submitted a " save the date" e- mail, an agenda, meeting minutes, an attendance sheet, and a written response. On October 17, 2017, Mr. Kraft submitted a reply.

DETERMINATION

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, 179111. App. 3d 161, 171 ( 5th Dist. 1989).

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 meeting" 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[.]

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 III. Att'y Gen. Op. No. S- 726, issued March 22, 1974, at 126. 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." Nabhani v. Coglianese, 552 F. Supp. 657, 661 ( N. D. Ill. 1982).

The City Council consists of nine members; five members constitute a quorum and three members a majority of a quorum. Therefore, if three members of the City Council engaged in deliberative discussions of public business during the September 25, 2017, gathering at the water company, that gathering would be subject to all of the requirements of OMA.

It is undisputed that the City Council did not provide advance notice or otherwise follow the requirements of OMA in connection with that meeting. In its response to his office, the City Council stated:

The meeting on September 25, 2017, was not held or called by the City of Carlinville. It was a regional water meeting held for the purpose of eventually establishing a regional water entity that will provide water to its members. The ground floor members are the City of Carlinville, FWD ( Fosterburg Water District) and JCRWC ( Jersey County Rural Water Company).

Cindy Campbell, who is an alderman of the City of Carlinville, attended this September 25 meeting as the representative for the City. She had previously been approved and voted to be the City' s representative by the Carlinville City Council at one of its regular meetings. Prior thereto at one of its regular meetings, the City Council voted to move forward with the regional water concept. Beth Toon, who is an alderman for the City of Carlinville, attended this September 25 meeting as an observer ( a guest) and I believe did speak at the meeting by offering comments and/ or propounding questions to the group conducting the meeting. The City of Carlinville' s Mayor, Deanna Demuzio, was also present at the meeting as an observer and did not speak or in any other way participate in the meeting. 121 Mr. Kraft replied that the video of the meeting contradicts the claim that Mayor Demuzio never spoke; he noted six instances in which she participated in the meeting. Stating that "[ t] he city has acknowledged that both Aldermen Beth Toon and Cindy Campbell were present and did speak about public business" at the gathering in Jerseyville, Mr. Kraft alleged that "[ a] majority of a quorum of the City Council * * * were present AND were discussing the public business of the City of Carlinville." ( Emphasis in original.) 3 This office' s review of the video of the gathering in Jerseyville on September 25, 2017, corroborated that Mayor Demuzio and the two other City Council members participated in the group' s deliberations. Although the discussion may not have been called or held by the City Council, the discussion directly concerned the City Council' s public business, as the City provides water service and the parties discussed forming a new entity to handle water service in the region. Because a majority of a quorum of the members of the City Council gathered to discuss public business on September 25, 2017, without providing advance notice and without following the other requirements of OMA, this office concludes that the City Council violated ZLetter from Rick Bertinetti, City Attorney, to Joshua M. Jones, Supervising Attorney, Public Access Bureau, Office of the Attorney General ( October 9, 2017), at 1.

OMA on that date. To remedy this violation, this office requests that the City Council make the minutes of the meeting publicly available. This office also cautions the City Council to consider in advance whether gatherings at which three or more of its members may engage in discussions of public business require proper advance notice and adherence to the other requirements of OMA.

The Public Access Counselor has determined that resolution of this matter does not require the issuance of a binding opinion. If you have any questions, please contact me at 312) 814- 8413 or the Chicago address on the first page of this letter. This letter shall serve to close this matter.

Vey truly yours, JOSHUA M. JONES Supervising Attorney Public Access Bureau