Jersey County Board Personnel Committee violated OMA by inaccessible meeting and no closed session recording

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Dear Mr. Weaver and State' s Attorney Goetten:

State' s Attorney, on behalf of the Committee, provided an answer and the requested materials. Mr. Weaver replied on November 26, 2018.

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, 179 I11. App. 3d 161, 171 ( 5th Dist. 1989).

Closed Meeting Section 2( a) of OMA provides that "[ alit meetings of public bodies shall be open to the public unless excepted in subsection ( c) and closed in accordance with Section 2a." 5 ILCS 120/ 2( a) ( West 2016), as amended by Public Acts 100-201, effective August 18, 2017; 100-465, effective August 31, 2017. Section 1. 02 of OMA (5 ILCS 120/ 1. 02 ( West 2016)) defines session of its meeting in an interior office space and was now convening in closed session, which Mr. Weaver would not be permitted to attend. Mr. Weaver stated that, "[ b] y virtue of the building design, there was no way to see the interior office or to know that a meeting was taking place there."' Mr. Weaver also alleges that, based on representations of others at the meeting, that no audio recording was made of the proceedings.

In response, the Board and the Committee chairman, Mr. Donald Little, asserted that the agenda improperly listed the location of the meeting as occurring in the " auditorium," instead of the County Board " office," and that he did not notice the error until meeting time when he found the Committee members, Mr. Weaver, and members of a union bargaining team that also intended to attend the meeting, in the auditorium instead of the office. Chairman Little stated that he told Mr. Weaver that the Committee would be holding a closed meeting, and that Mr. Weaver responded by asserting that a closed meeting nevertheless must start in open session. Chairman Little said he agreed, and that he would hold the Committee's open session in the Board office, but that he needed to discuss a matter with the " bargaining team" before beginning, and asked Mr. Weaver to leave until the meeting began. Chairman Little stated that when the Committee members relocated from the auditorium to the office, he went to look for Mr. Weaver, located him outside the building in his vehicle, " motioned for Weaver to come to the Board office and then waited for him to enter the office in order the start the meeting. Weaver did not come to the opening session of the Personnel Committee[.]" 2 Chairman Little further asserted that the Committee voted in open session to go into closed session, and after that motion was approved, returned to the Auditorium to hold the closed session. Upon his return to the Auditorium, Chairman Little stated that he saw Mr. Weaver and informed him that the Committee had held its open session in the office, was now convening closed session, and therefore, Mr. Weaver would need to leave. Chairman Little did not directly respond to the allegation in the Request for Review that the office in which the meeting was held was an interior office" and that the design of the building made it difficult to see the interior office or observe a meeting being held there. Finally, Chairman Little acknowledged that the Committee did not make a verbatim recording of the closed session meeting.

Mr. Weaver replied, disputing in part Chairman Little's recitation of the events that occurred that evening. Mr. Weaver stated that after Chairman Little motioned for him to return to the building, he disappeared inside the building before Mr. Weaver could follow him. Mr. Weaver asserted that "[ ill was not possible to see where he went because of the angle of the sun against the glass entrance doors and I assumed he went into the auditorium to open the meeting. I walked into the auditorium and only the union side of the meeting was there. They advised that the board members had left but were not sure where they had went to. I then searched through the entire building but saw no obvious sign of a meeting anywhere. 3 There is no dispute that the Committee held a " meeting," as defined in section 1. 02 of OMA, on August 20, 2018. We note that Mr. Weaver and Chairman Little appear to use different nomenclature for the room in which the meeting was scheduled to be held. Mr. Weaver and the agenda describe the location as the " Jersey County Board Room," while Chairman Little referred to it as the auditorium. Mr. Weaver asserted that the Jersey County Board Room is a corner of the auditorium in which small meetings are routinely held. Based on Chairman Little' s response, it appears that not only Mr. Weaver, but also the Committee members and union representatives, understood the location of the meeting to be the auditorium.

Chairman Little asserted that the agenda erroneously listed the location of the meeting and it should have stated that the meeting was to be held in the Board office. However, upon realizing the error on the agenda, Chairman Little nevertheless convened the meeting in the Board office, instead of the location listed on the agenda. Notably, he did so even though he, the other committee members, and Mr. Weaver ( who had already indicated his interest in attending the meeting) were present at the place listed on the agenda, at the date and time at which the meeting was scheduled to begin. Chairman Little did not argue that it was necessary to relocate the meeting from the location listed on the agenda to the Board office, and did not state that he posted any signs re -directing interested members of the public to the new location. Moreover, he did not contest Mr. Weaver' s allegation that the Board office is an interior office, that a meeting being held in that office would not be visible from the entrance to the building, and that the Board routinely held smaller meetings in the section of the auditorium known as the Board room. Accordingly, by holding its August 20, 2018, meeting in a location different from that listed on the agenda and in a location that Mr. Weaver was unable to find, the Committee violated sections 2( a) and 2. 01 of OMA by holding a meeting at a place other than the place specified on the agenda and at a location that was not convenient and open to the public.

The meeting minutes from the August 20, 2018, meeting indicate that the meeting was called to order at 6: 08 p.m., the Committee voted to enter closed session, and then entered closed session at 6: 09 p.m. Because the Committee did not take final action at the August 20, 2018, meeting, no remedial action is necessary. However, this office reminds the Committee to ensure that the notice and agenda of all Committee meetings correctly identify the location of the Closed Session Recording All public bodies are required to " keep written minutes of all their meetings, whether open or closed, and a verbatim record of all their closed meetings in the form of an audio or video recording." 5 ILCS I20/ 2. 06( a) ( West 2016)). Although this requirement is unambiguous, the Committee admitted that it did not create a verbatim recording of the August 20, 2018, closed session meeting. Accordingly, the Committee also violated section 2. 06( a) of OMA. Although there does not appear to be any action that the Committee can take at this time to remedy its violation of section 2. 06( a) of OMA, this office requests that the Committee take measures to ensure that all closed sessions are properly recorded.

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- 6437 or lbartelt@atg. state.il.us. This letter serves to close this file.

Very truly yours,

LEAH BARTELT

Assistant Attorney General Public Access Bureau