DuPage County Election Commission violated OMA by allowing telephone participation at meeting

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Dear Mr. Kraft, Ms. Kaczmarek, and Mr. Conway:

This determination letter 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 DuPage County Election Commission ( Commission) violated OMA by improperly permitting a Commission member to attend its December 12, 2018. meeting by telephone.

BACKGROUND

On December 12, 2018, Mr. John Kraft submitted a Request for Review to the Public Access Bureau alleging that the Commission violated OMA during its December 12, 2018, meeting by permitting one if its members to attend the meeting by telephone for a reason that was not permitted under OMA. In particular, he alleged:

The Chairman, prior to the meeting, stated that the absent Commissioner had told people at the previous meeting that he would be visiting family and would not be attending this meeting.

The Chairman and remaining commissioner permitted him to attend via telephone, and even permitted him to Motion and Vote on items for action, including expenditures of public funds. I21 Mr. Kraft argued that simply " visiting relatives" was not one of the permitted reasons for attending a meeting by means other than physical presence. 3 He alleged that the Commission violated sections 7( a) and 7( c) of OMA ( 5 ILCS 120/ 7( a), ( c) ( West 2017 Supp.)).

On December 20, 2018, this office forwarded a copy of the Request for Review to the Commission and asked it to provide this office with copies of the December 12, 2018, meeting agenda, minutes, and any Commission rules governing member attendance by means other than physical presence for this office's confidential review. together with a written response to Mr. Kraft' s OMA allegation. On January 3, 2019, this office received a written response and a copy of the Commission' s remote attendance policy; the Commission stated that the minutes had yet to be prepared but that an audio recording of the meeting was posted online.' On January 8. 2019, this office forwarded a copy of the Commission' s response to Mr. Kraft; he did not reply.

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 and that their deliberations be conducted openly." Gosnell v. Hogan, 179 111. App. 3d 161, 171 ( 5th Dist. 1989).

Sections 7( a) and 7(c) of OMA set forth the procedure and requirements for allowing a member of a public body to attend a meeting by audio or video conference in limited circumstances, as follows:

a) If a quorum of the members of the public body is physically present as required by Section 2. 01. a majority of the public body may allow a member of that body to attend the meeting by other means if the member is prevented from physically attending because of (i) personal illness or disability: ii) employment purposes or the business of the public body: or iii) a family or other emergency. " Other means" is by video or physically attending because of: (i) personal illness or disability; ( ii) employment purposes or the business of the public body; or ( iii) a family or other emergency." ( Emphasis in original.)' Section 111 further provides, in pertinent part:

b. The presiding officer of the meeting must announce, prior to the roll call being taken, that one or more Commissioners are participating by remote means and the means of participation for each such Commissioner.

c. The non -present Commissioner(s) must answer the roll call, and state that he or she is unable to attend the meeting in person, which of the reasons in Section II. b. of this Policy he or she is participating under, and that he or she is willing and able to participate by the remote means selected."

In its response to this office, the Commission confirmed that one of its three members participated in the meeting at issue by audio conference. The Commission noted, however, that OMA does not specifically define what constitutes a " family or other emergency," and that there was no reported Illinois case law addressing that exception. The Commission asserted that " Member Boske participated in the December 12, 2018 meeting via telephone due to an out- of-state family matter. Moreover, two of the three Members of the Election Commission were in physical attendance at the meeting and could have conducted all business on the agenda without the participation of Member Boske."' According to the Commission, Member Boske felt a unique obligation to participate in the meeting" for political party representation reasons and that he " believed that the OMA authorized his participation in the Resolution No. 2012- 10, A Resolution Adopting an Amended and Restated Policy for Conduct of Meetings of the Board of Commissioners of the DuPage County Election Commission via Remote Means, 1I. b. Pre - Meeting Requirements (adopted September I I, 2012).

Resolution No. 2012- 10, A Resolution Adopting an Amended and Restated Policy for Conduct of Meetings of the Board of Commissioners of the DuPage County Election Commission via Remote Means, III. Meeting Requirements ( adopted September 11, 2012).

meeting by telephone." 8 The Commission further stated that " all items voted on for final action received approval by unanimous vote of all three members[.]" v Black' s Law Dictionary defines " emergency" as: " 1. A sudden and serious event or an unforeseen change in circumstances that calls for immediate action to avert. control. or remedy harm. 2. An urgent need for relief or help." Black' s Law Dictionary ( 10th ed. 2014), available at Westlaw BLACKS. Thus, " a family or other emergency" entails an element of immediacy.

In this matter, the Commission stated that Member Boske did not attend the December 12, 2018, meeting in-person due to an out-of-state family matter, but did not demonstrate that the family matter involved a sudden and serious event or an unforeseen change in circumstances that needed immediate attention. Indeed, the Commission did not deny Mr. Kraft' s allegation that Member Boske had informed the Commission and public at the previous month's meeting that he would not be at the next month' s meeting, suggesting that the trip was pre -planned. Absent information indicating that the family matter concerned an urgent matter or required immediate action, this office is unable to conclude that Member Boske was prevented from physically attending the meeting due to a family emergency or other type of emergency. See, for example, III. Att' y Gen. PAC Req. Rev. Ltr. 37382, issued May 26, 2016 ( concluding that a board improperly permitted a commissioner, who had a pre -planned trip to take her son to college, to attend a meeting by telephone because the commissioner' s absence did not meet the family or other emergency" exception in section 7( a) of OMA). Because Member Boske' s absence did not meet the emergency exception in section 7( a) of OMA, the Commission improperly permitted him to attend the December 12, 2018, meeting by telephone.

Additionally, the Commission did not adhere to the roll call procedure set forth in Section IIIb of its remote attendance policy. Based on this office' s review of the audio recording of the start of the meeting, Member Boske did not specify during the roll call that he was unable to attend the meeting in person, under which of the reasons in Section II. b. of the policy he was participating, or whether he was willing and able to participate by the remote means selected. Instead, Member Boske simply answered " here" during the roll call. Because section 7( c) permits remote attendance only to the extent allowed by the rules the public body has adopted, and because the Commission did not follow those rules, this office concludes that the Commission also violated section 7(c) of OMA.

Nonetheless, this office' s review of the Commission's December 12, 2018.

meeting packet posted on the DuPage County website1° confirmed that each item on which the Commission took final action was approved by a unanimous vote. Thus, the vote of Member Boske, who participated in the meeting by telephone, would not appear to have changed the outcome of the Commission's final actions. Even if remedial action was warranted. the Commission was dissolved after the meeting at issue.

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

Very truly yours,

TERESA LIM

Assistant Attorney General Public Access Bureau