East Dundee Board did not violate OMA by attending public forum without deliberation

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Dear Representative Skillicorn and Ms. Milluzzi:

and tried to dominate the discussion." 2 He also provided an internet link to a video of the public forum. On February 13, 2018, this office sent a copy of the Request for Review to the Board and asked it to provide a written response to the allegation that the Board members' attendance and participation in the public forum constituted a Board meeting.

On February 26, 2018, Representative Skillicorn submitted another Request for Review alleging that the Board violated OMA on that date in connection with an informational meeting concerning the home rule referendum. He stated that five members of the Board attended, and that Village business, taxes and finances were discussed. On March 5, 2018, this office sent a copy of the Request for Review to the Board and asked it to respond to that allegation.

On March 23, 2018, counsel for the Board provided a consolidated response to both Requests for Review and a video recording of the February 26, 2018, event. On March 26, 2018, this office forwarded a copy of that response to Representative Skillicorn. On March 30, 2018, Representative Skillicorn submitted a reply to which counsel for the Board responded on April 3, 2018. This office has considered all of the parties' submissions.

concern" did not make the presentation subject to OMA, but the extensive discussions of public business by members of two county boards during the presentation did trigger the requirements of OMA. ( Emphasis in original.) Ill. 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.")

The Board is comprised of the Village president and six trustees. Thus, if three members of the Board engaged in deliberative discussions of public business during the January 31, 2018, and February 26, 2018, events, all of the procedural safeguards and requirements of OMA would apply. It is undisputed that the Board did not post an agenda or follow the requirements of OMA for either event. Therefore, this office must analyze whether those events constituted meetings of the Board under OMA.

This office has reviewed a video recording of the January 31, 2018, event, which was a forum sponsored by the Fox Valley Libertarian Party concerning the referendum on the Village' s home rule authority. Representative Skillicom alleged that four Board members attended, while the Board acknowledged that three of its members attended. Regardless, three members is a majority of a quorum of the Board. Two of the Board members made substantive comments related to the referendum and the Village' s exercise of home rule authority.

In his Request for Review, Representative Skillicom asserted that the Board members " were active participants in the discussion. All four were in the room together at the same time and they made no effort to limit how many trustees were in the room, how they would speak, or any efforts to comply with the Open Meetings Act.i3 In response, counsel for the Board contended that the forum did not constitute a Board meeting because only two Board members, which is less than a majority of a quorum, participated in the discussion. The response further asserted that the " trustees were not engaged in a deliberation as to a decision. They provided some factual information as part of an open discussion with other people about state laws and past actions of the village. * * * The trustees were not sitting together and were not speaking together about this issue." 4 In addition, the response contended that the referendum is not the public business of the Board because the voters, rather than the Board, ultimately decided whether to approve the referendum. In his reply, Representative Skillicom stated that he exchanged pleasantries with two of the Board members and that the other two Board members actively discussed public business. He alleged that " the mere presence of elected officials in a public setting where village business is discussed, is a violation of the intent and letter of the law. One does not have to speak at a meeting to be present." 5 This office also has reviewed a video recording of the February 26, 2018, event, which was an informational forum concerning the home rule referendum hosted by the Village. The forum consisted of a presentation by the Village administrator followed by a question and answer session. At the beginning of the forum, the administrator stated that members of the Board as well as several public employees such as the police chief were in attendance, and encouraged members of the public to ask them questions afterward. However, none of the Board members spoke during the presentation or the question and answer session that was recorded. The Board' s response to this office denied that there was any " discussion or deliberation by Village Board members about any topic. i6 In his reply to the Board' s response, Representative Skillicorn alleged that after the administrator gave her presentation and responded to questions, a] ll seven elected officials stayed and discussed this matter, in an official capacity, with the attendees for another 30 minutes. Again the mere presence is a violation of OMA and the active engagement of the attendees by all seven elected officials is further evidence of a violation." 7 The Board' s supplemental response noted that most of those details did not appear in Representative Skillicorn' s Request for Review, which only stated that Board members attended a forum in which public business was discussed, but characterized his submissions as still lacking any evidence of an OMA violation: " He merely states that elected officials were present for 30 minutes after the information forum and may have talked with residents, but has no personal knowledge as to what they talked about, nor does he provide any evidence or even allegations that more than two of them were talking to a single resident at a time. i8 The available information does not include facts from which this office could conclude that either of the events in question were meetings of the Board subject to the requirements of OMA. Only two members of the Board publicly spoke at the January 31, 2018, forum. Many if not most of their comments appeared to be made in response to criticism or comments made by others in attendance; the Board members' comments were separated in time and did not appear to be coordinated. At no time during the forum did three or more members of the Board engage in deliberative discussions of public business. The fact that a majority of a quorum or a quorum of Board members attended the forum did not transform that event into a Board meeting. 9 Likewise, this office has not received evidence that at least a majority of a quorum of Board members held deliberative discussions of public business among themselves during or after the February 26, 2018, public forum. Even if members of the public spoke with Board members after the administrator' s presentation, as they were encouraged to do by the Village administrator, such discussions do not constitute deliberations among Board members which trigger the requirements of OMA. Accordingly, this office concludes that the Board did not violate OMA in connection with either event.

This letter serves to close this file. If you have any questions, please contact me at ( 312) 814- 6756.

Very truly yours,