Elmhurst City Council violated OMA by failing to recite consent agenda items

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Dear and Mr. Storino:

This determination is issued pursuant to section 3. 5( e) of the Open Meetings Act OMA) ( 5 ILCS 120/ 3. 5( e) ( West 2018)). For the reasons discussed below, the Public Access Bureau concludes that the Elmhurst City Council (" City Council") violated the public recital requirement of section 2( e) of OMA1 in connection with its May 7, 2018, and May 21, 2018, It seems to be longstanding practice for the Council to use a consent agenda" to vote on multiple items at the same time. I do not contest this process, as it helps the Council work more efficiently by consolidating several matters into a single motion. However, before the Council votes to approve the consent agenda, it must precede that action with " a public recital of the nature of the matter being considered and other information that will inform the public of the business being conducted", in accordance with section 2( e) of the OMA. Although the items on the consent agenda are posted on the meeting agenda, they are not read aloud during the meeting.

The requirement to publish a meeting agenda is distinct from the requirement to precede final action with a public recital. It is possible that a member ofthe public may attend the meeting without having read the meeting agenda. Therefore, those who attend the meeting must be informed of the business being conducted as part of the consent agenda. E21 In his Request for Review, included the website links to each meeting' s agenda and minutes as well as links to the YouTube recording of each meeting. He further detailed the City Council's allegedly insufficient public recital as follows:

At the May 7, 2018 meeting] The Mayor presented the consent agenda to the Council for approval, and asked if any alderman wished to pull items off the consent agenda. Items 7. 6, 7.7, and 7. 8 approved, the City Clerk subsequently conducted a public recital only for items 7. 6, 7.7, and 7. 8.

At the May 21, 2018 meeting] The Mayor presented the consent agenda to the Council for approval, and asked if any alderman wished to pull items off the consent agenda. Items 5. 10 and 5. 18 were removed at the request of an alderman. The Mayor then said, I'll entertain a motion to approve the consent agenda, minus items 5. 10 and 5. 18." A roll call vote was conducted, and the Council approved the motion unanimously.

There was no public recital of the matters being considered in the consent agenda. Furthermore, when items 5. 10 and 5. 18 were removed from the consent agenda, there was no public recital of the nature of the matters being removed from the consent agenda. After the consent agenda ( minus items 5. 10 and 5. 18) was approved, the City Clerk subsequently conducted a public recital only for items 5. 10 and 5. 18. 131 On June 21, 2018, the Public Access Bureau forwarded a copy of the Request for Review to Mayor Steven Morley, requesting a detailed written response to the allegations raised by Request for Review. A second request for that information was sent to Mayor Morley on July 12, 2018. On July 25, 2018, this office received the City Council's response to the Request for Review and forwarded that response to who did not submit a reply.

ANALYSIS

In Board ofEducation ofSpringfield School District No. 186 v. Attorney General, 2017 IL 120343, ¶ 39, 77 N. E. 3d 625, 633 ( 2017), the Illinois Supreme Court decided that final action must be preceded by a public recital during the same meeting at which action is taken. The Court explained that "[ t] he language of section 2( e) does not mention an explanation, the significance ofthe action being considered, or the attendees' understanding. Rather, the plain meaning ofthe phrase 'public recital ofthe nature ofthe matter being considered' is that the public body must state the essence of the matter under consideration, its character, or its identity." Springfield School District, 2017 IL 120343, ¶ 46, 77 N.E. 3d at 633- 34. The Court further advised that "while the 'nature of the matter' may be recited in nonspecific terms (the approval of a loan, a contract, a purchase, a policy, or a resolution), ' other information' is necessary to inform the public of the specific item of business (the purpose of the loan, the subject ofthe contract, the type ofproperty being purchased, the title of the policy, or the purpose of the resolution)." Springfield School District, 2017 IL 120343, ¶ 50, 77 N.E. 3d at 634.

The Court rejected as " time consuming and impractical[ ] * * * any suggestion that a public recital of 'key terms' is required[,]" stating that "[ a] public body may choose to provide such information in its recital at the open meeting but is not compelled to do so by section 2( e)." Springfield School District, 2017 IL 120343, ¶ 61, 77 N.E. 3d at 635- 36. Rather, the Court held, the recital must announce the nature of the matter under consideration, with sufficient detail to identify the particular transaction or issue, but need not provide an explanation of its terms or its This office's review of the relevant portions of the video recordings of the City Council's May 7, 2018, and May 21, 2018, meetings confirmed that the City Council's discussion and vote on the consent agendas align with the descriptions and the City Council provided to this office. At each meeting, the Mayor asked if any aldermen wished to pull items off the consent agenda and then entertained a motion to approve the consent agenda minus the pulled items. After a motion had been made and seconded, roll call votes were taken on each consent agenda without any recital of the individual items contained thereon. Each consent agenda contained a combination of over two dozen items including minutes, accounts payable, reappointments, referrals, reports, ordinances, and resolutions.' In addition to the consent agendas, the May 7, 2018 and May 21, 2018, agendas each contained a " Reports & Recommendations" item (featuring reports of Mayor Morley and City Manager Grabowski) and a " Resolutions" item ( with only one resolution listed for consideration). 6 The May 21, 2018, agenda also contained an " Ordinances" item, with two ordinances specified for consideration.' Under the Illinois Supreme Court' s analysis in Springfield School District, this office must determine whether the City Council adequately identified the nature of the matter under consideration and the details sufficient to identify the particular issue. The City Council did not identify either the nature ofthe matters under consideration (the approval of minutes, reports, ordinances, and resolutions) or any details sufficient to identify the particular (and varied) issues presented. In addition, the consent agendas each included an extensive number of items ( 30 on the May 7, 2018, agenda (including 5 ordinances and 9 resolutions) and 28 on the May 21, 2018, agenda ( including 10 ordinances and 2 resolutions)). Conducting the City Council' s substantive business via consent agenda, without any public recital, is contrary to the public policy underlying OMA: that the people have a right to be informed as to the conduct of their business.

This office appreciates the City Council's contention that requiring public recital would seemingly frustrate the legislative intent of the omnibus procedures provided in section 3. 1- 40- 40 of the Municipal Code ( 65 ILCS 5/ 3. 1- 40- 40 ( West 2018)), which allows for the efficient conduct of multiple matters of municipal business at one time. That provision, however, deals specifically with voting:

Sec. 3. 1- 40-40. Vote required. The passage of all ordinances for whatever purpose, and of any resolution or motion i) to create any liability against a city or (ii) for the expenditure or appropriation of its money shall require the concurrence of a majority of all members then holding office on the city council, including the mayor, unless otherwise expressly provided by this Code or any other Act governing the passage of any ordinance, resolution, or motion. * * * In addition, the corporate authorities at any meeting may by unanimous consent take a single vote by yeas and nays on the several questions of the passage of any 2 or more of the designated ordinances, orders, resolutions, or motions placed together for voting purposes in a single group. The single vote shall be entered separately in the journal under the designation omnibus vote", and in that event the clerk may enter the words omnibus vote" or "consent agenda" in the journal in each case instead of entering the names of the members of city council voting "yea" and those voting "nay" on the passage of each of the designated ordinances, orders, resolutions, and motions included in the omnibus group or consent agenda. The taking of a single or omnibus vote and the entries of the words " omnibus vote" or consent agenda" in the journal shall be a sufficient compliance with the requirements of this Section to all intents and purposes and with like effect as if the vote in each case had been taken separately by yeas and nays on the question of the passage of each ordinance, order, resolution, and motion included in the omnibus group and separately recorded in the journal. Likewise, the yeas and nays shall be taken upon the question of the passage of any other resolution or motion at the request of any alderman and shall be recorded in the journal. E81 While section 3. 1- 40- 40 clearly authorizes municipalities to utilize consent agendas and conduct omnibus votes to run meetings more efficiently, it makes no mention of exempting municipalities from compliance with section 2( e) of OMA. If the General Assembly had intended to carve out such an exception for consent agendas, it would have done so expressly. In light of the public policy underlying OMA, 9 and the Illinois Supreme Court' s analysis in Springfield School District, this office concludes that section 2( e) of OMA requires a public recital of each item in a consent agenda before a vote. As the Court emphasized, the recital merely must identify each transaction or issue a public body is acting upon; a description of the significance or key terms of each item is not required. Springfield School District, 2017 IL 120343, ¶ 64, 77 N.E. 3d at 636.

The Public Access Counselor has determined that resolution of this matter does not require the issuance of a binding opinion. If you have questions, you may contact me at 217-782- 9054, [email protected], or the Springfield address on the first page. This letter serves to close this matter.

Very truly yours, SUZANNE DENNIS BORLAND Assistant Attorney General Public Access Bureau 53629 o 2e pub recital improper mun