Lisle board violated OMA by allowing remote attendance without vote, but not by denying remote public comment

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Dear and Ms. Elliott:

This determination is issued pursuant to section 3. 5( e) of the Open Meetings Act OMA) ( 5 ILCS 120/ 3. 5( e) ( West 2016)). For the reasons that follow, the Public Access Bureau concludes that the Board of Trustees of the Village of Lisle ( Board) violated the requirements of OMA by permitting Trustee Anthony Carballo to attend its July 23, 2018, meeting by telephone and to address the Board, but did not violate OMA by prohibiting from addressing the Board when he was not physically present at the meeting.

On July 24, 2018, the Public Access Bureau received a Request for Review from alleging that the Board had discriminated against him at it July 23, 2018, meeting because it did not grant his e- mailed request to make public comment after it had permitted Trustee Carballo to comment by telephone at the game meeting. In particular, stated that he was viewing the meeting remotely and sent e- mails to the Village manager and to all of the Board members requesting the opportunity to Comment by telephone because Trustee Carballo had made " public comment" remotely. stated that a member of the Board publicly acknowledged his request to comment, but he was not permitted to do so.

On August 6, 2018, the Public Access Bureau sent a copy of the Request for Review to the Board and asked it to respond to allegation that the Board had not allowed him to comment by telephone when it ha. allowed Trustee Carballo to speak remotely. This office also requested that the Board provide this office with a copy of its rules for public comment and for meeting attendance by means other than physical presence by a Board member. This office did not receive a response from the Beard to our August 6, 2018, correspondence. On August 27, 2018, this office sent the Board a second letter requesting that it respond to Request for Review. On September 5, 2018, counsel for the Board provided this office with a written answer on behalf of the Board, together with copies of the Board' s established and recorded rules for public comment and attendance by other means. On September 7, 2018, this office sent a copy of the Board' s answer; he submitted a written reply on September 16, 2018.

DETERMINATION

It is 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." 5 ILCS 120/ 1 ( West 2016). " 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 d that their deliberations be conducted openly." Gosnell v. Hogan, 179 I11. App. 3d 1611, b) If a member wishes to attend a meeting by other means, the member must notify the recording secretary or clerk of the public body before the meeting unless advance notice is impractical.

c) A majority ofthe public body may allow a member to attend a meeting by other means only in accordance with and to the extent allowed by rules adopted by the public body. The rules must conform to the requirements and restrictions of this Section, may further limit the extent to which attendance by other means is allowed; and may provide for the giving of additional notice to the public or further facilitate public access to meetings. ( Emphasis added.)

Under the plain language of these provisions, a public body with a quorum physically present has the discretion to permit a member who is not physically present to participate in the meeting by audio or video conference for any of the three re+ ons set forth in section 7( a) of OMA and in accordance with its rules for attendance by other means.

The Board provided this office with a copy of its ordinance adopting procedures for electronic attendance at meetings, Ordinance 2007-4117, adopted June 4, 2007. The Board' s rules state that a member that meets the one of the three reasons for being unable to physically attend the meeting " should notify the Village Clerk at least 24 hours before the meeting, unless impractical, so that necessary communications equipment can be arranged."' The rules set forth the following procedures for permitting a person ( o attend electronically:

After establishing that a quorum is physically present at a meeting where a member of the Village de ires to attend electronically, the presiding officer shall state that ( i)1a notice was received by a member of the Village in accordance with these Rules, and ( ii) the member will be deemed authorize to attend the meeting electronically unless a motion obj cting to the member's electronic attendance is made, seconded and pproved by two- thirds of the members of the Village.[ 21 The Board's rules further state that a member who is " permitted to attend electronically will be able to express his or her comments during the meeting[, and] shall be heard, considered, and counted as to any vote taken." 3 In response to this office' s inquiry as to the basis for permitting Trustee Carballo to speak at the meeting, the Board' s counsel stated that the Board voted to allow Trustee Robert J. Mandelto attend the meeting by audio conferen, ce. However:

Trustee Carballo was not allowed o electronically participate because he did not meet the requirements. Trustee Carballo was allowed to listen to the proceedingls, as it was not clear if he could be disconnected without disconnecting Trustee Mandel. Later in the meeting Trustee Carballo requested to make a public comment, which the Village President allowed by vote of the Village Board. 141 The Board's response to this office acknowledges that Trustee Carballo was not eligible to attend the July 23, 2018, meeting by audio conference because he did not meet any of the requirements of section 7( a) of OMA. Indeed, this office' s review of the video recording of the meeting indicates that the Board questioned Trustee Carb llo about the reasons for his not being able to attend the meeting in person and discussed whether he was eligible to attend the meeting by audio conference. A motion was made during the meeting to allow Trustee Carballo to attend the meeting by audio conference but was not seconded by another trustee on the Board. Therefore, Trustee Carballo was not authorized to participate in the meeting electronically.

This office' s review of the video recording of the meeting also indicated that the Board had arranged communications equipment so that Trustee Carballo and Trustee Mandel were both on an audio conference call with the olier members of the Board at the start of the meeting. When the motion to allow Trustee Carbfallo to attend the meeting by audio conference failed to receive a second, Trustee Carballo' s connection to the Board through an audio conference set up for Board members attending electronically should have been terminated. The Board asserted that it could not disconnect Trustee Carballo from the audio conference without disconnecting Trustee Mandel. However, instead of permitting Trustee Carballo to continue to participate in the meeting by audio conference, it appears that the Board could have requested that Trustee Carballo hang up his phone or could have disconnected both Trustee Carballo and Trustee Mandel and arranged for Trustee Mandel to rejoin the audio conference with the Board.

Because Trustee Carballo continued to remain on the audio conference with Trustee Mandel and the members of the Board who were physically present, he was able to interrupt the Board later in the meeting to ask whether he was permitted to participate publicly at the nieeting. The Board entertained and approved a motion to allow Trustee Carballo to make comments as a member of the public. Trustee Cafballo subsequently participated through the Board member only audio connection during public comment periods and made multiple additional requests to comment throughout the meleting. Because Trustee Carballo is, in fact, an elected official and Board member, and not a member of the public during Board meetings, he should not have been allowed to participate electronically during the public comment portion of the meeting. By doing so Trustee Carballo was improperly attending the meeting remotely, notwithstanding that it was clear he was not eligible to attend under the circumstances of his body." The intention of section 2.06( g) of OMA is provide individuals who attend a meeting of a public body the right to address the officials of that public body under the rules established by the public body. The word " attend" is defined as Ito be present at: go to a meeting> <— college>[. j" Webster' s Third New International Dictionary ( 1993), at 140. Thus, in order " to attend" a meeting of a public body, a person must be present at or go to the location of the meeting.

alleged that the Board Violated OMA because it did not permit him to provide public comment at the July 23, 2018, meeting. acknowledged that he did not physically attend the meeting but stated he was streaming the meeting remotely. Although section 7 of OMA provides a mechanism for a member of a public body to attend and participate in a meeting by means other than physical presenee, OMA does not provide a similar opportunity for members of the public to attend a meeting by means other than physical presence. Although a public body may elect to allow public comment rom individuals who are not physically present at the meeting, the Board' s established an recorded rules do not provide for public comment from individuals who are not physically present. Further, no provision of OMA requires the Board to do so. Because only individ als who attend the meeting have the right to address public officials and because did not attend the meeting, the Board did not violate section 2. 06( g) of OMA at its July 23, 2018, meeting when it did not provide with an opportunity to provide public comment in accordance with its established and recorded rules.

There are no means by which the Board can remedy its violation of sections 7( a) and 7( c) of OMA when it allowed Trustee Carballo to continue to attend and participate in the July 23, 2018, meeting. With respect to the Board' s violation of sections 7( a) and 7( c), however, section 7 provides that "[ a] majority of the public body may allow a member to attend a meeting[.]" These violations can be avoided in thf future if the Board alters its rules to require a majority vote of its membership prior to allowing [ emote attendance rather than permitting such attendance unless the Board takes action to deny the request. This office requests that the Board comply with the requirements of sections 7( a), 7( b), and 7( c) of OMA at future meetings.

The Public Access Counselor has determined that resolution of this matter does not require the issuance of a binding opinion. Th s letter serves to close this matter. If you have any questions, please contact me at ( 217) 782- 9054, mhartman@atg. state. il.us, or the Springfield address on the bottom of the first page of this letter.

Very truly yours,

T HARTMAN

Assiistant Attorney General Public Access Bureau 54143 o 7 attendance improper 206 pub comment proper mun