City of Urbana Electoral Board OMA complaints on agenda notice, public comment, access closed without finding

This reading view follows the source PDF's positioned text blocks. Page headers, repeated office furniture, and lower-margin notes are kept out of the narrative; source notes are available below. Reconstruction is automatic and imperfect — the PDF is the authoritative version, and it's linked on this page.

Dear

This determination is issued pursuant to section 3 .5( e) of the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2022)). This office has consolidated two Requests for Review in this determination because they concern the same meeting of the City of Urbana (City) Electoral Board (Board).

BACKGROUND

On January 4, 2021, submitted a Request for Review' alleging that the Board posted the final agenda for the December 7, 2020, meeting less than 48 hours before the meeting began, and did not prO notice for the Board meetings held on December 8, 2020, and December 9, 2020. - also alleged that the Board did not - submitted her own Request for Review on December 8, 2020. 2 She alleged that during the public participation portion of the December 8, 2020, meeting, she had her "hand raised in the Zoom conferencing app to give public input, but was not allowed to speak. "3 She contended that the Board improperly restricted public comments to three minutes per speaker for a total participation time of 30 minutes, asserting that the Urbana City Code's rules for in-person meetings permitted individuals to speak up to 5 minutes per person for a total participation time of 2 hours.

This office forwarded copies of the Requests for Review to the Board and asked it to provide written responses addressing and allegations. This office requested copies of the December 7-9, 2020, meeting agenda, minutes, and any public comment rules that were enforced for that meeting. The City responded on behalf of the Board and provided the requested materials. The City's answers were forwarded to Mr. Hansen and - - - replied to the City's response; - did not.

On January 13, 2021, -requested that this office also consider whether the Board violated OMA by permitting certain, but not all, members of the public to attend the December 7-9, 2020, meeting in person while the rest of the public could only attend via Zoom.

FACTS

In its response to this office, the City explained that the Board "is an independent public body that convenes for the purpose of conducting hearings in order to rule upon objections to candidates' nominating petitions. "4 It stated that the Board dissolves upon completion of its tasks and is only reconvened when and if there are future objections to nominating petitions. The City is unaware of any previous occasions on which the Board was convened. It noted that "the entire electoral board process was foreign to the individuals who The City stated that it posted three versions of the agenda for the December 7, 2020, Board meeting. The City explained that the Board posted the "original agenda" at 5:30 p.m. on December 4, 2020. The original agenda stated, in pertinent part:

A. CALL TO ORDER B.ROLLCALL C. PUBLIC PARTICIPATI ON *Public Comments should be conducted in accordance to Urbana City Code section 2-5 except for the following: comments will be limited to three minutes per speaker, public comment will total no more than 30 minutes.

D. PUBLIC HEARI NG 1. Appointment of Hearing Officer[7l The City stated that the Board posted an "amended agenda" at 12:44 p.m. on December 5, 2020, and again at 1: 14 p.m. on December 5, 2020. The City did not explain why the Board posted the same version of the amended agenda twice. The amended agenda differed from the original agenda by, among other things, adding an action item to adopt rules and an explanation that the Board meeting would be conducted as a hybrid meeting. The amended agenda removed the notation about public participation that was included in the original agenda. The amended agenda stated, in pertinent part:

A. CALL TO ORDER B. ROLLCALL 1. *Public input via Zoom D. PUBLIC HEARING 1. Appointment of Hearing Officer 2. Case Called * * * Adoption of Rules by Board E. ADOPTION OF RULES BY BOARD * * * The Electoral Board meeting and hearing will be conducted as a hybrid meeting and hearing pursuant to 5 ILCS 120/7. The members of the Electoral Board, candidates, objectors, their respective legal counsel (if any), and the City Attorney will be present in the City Council Chambers for the hearing. The Electoral Board's outside retained legal counsel may attend in person or by Zoom W ebinar as the circumstances may dictate.

*Due to the Governor Pritzker and Mayoral Emergency Covid-19 Orders, the Urbana City Council Chambers will not be open to the public during this proceeding. Public Comments will be received via Zoom Webinar. You may watch the meeting on streaming services, or on Urbana Public Television, or attend via Zoom_[SJ The City stated that the Board posted a "revised amended agenda" at 2:54 p.m. on December 7, 2020, which was after the first session of the meeting recessed. The revised amended agenda differed from the amended agenda by adding an action item to amend the agenda, by moving up the adoption of the Board rules to before public participation, and by A.

Call to Order Roll Call B.

Amend the Agenda C.

D.

Adoption of Rules By Board Appointment of Hearing Officer E.

F.

Public Participation 1. *Public comment via Zoom. Except as hereinafter provided, the established and recorded rules for public comment pursuant to Section 2.06(g) of the Open Meetings Act (5 ILCS 120/2.06(g)) shall apply except that the total time allocated to public comment shall be 30 minutes and each speaker shall be permitted to speak no longer than three (3) minutes[9l The revised amended agenda was posted with a copy of the Board's "Rules of Procedure" applicable to the hearing at issue. Rule 19 of those rules provided:

Except as hereinafter provided, the established and recorded rules for public comment pursuant to Section 2.06(g) of the Open Meetings Act (5 ILCS 120/2.06(g)) shall apply except that the total time allocated to public comment shall be 30 minutes and each speaker shall be permitted to speak no longer than three (3) minutes. Public comment shall be relevant to the limited jurisdiction of the Board_[JOJ When the Board reconvened at 9:00 a.m. on December 8, 2020, the Board Chair stated that the Board would "start from scratch" with the revised agenda. 11 The Board then approved a motion to recess from the previous day's meeting and revoted on the first three substantive items listed on the revised amended agenda: amending the agenda, adopting the rules of the Board, and appointing the hearing officer. The Board recessed again until 5:30 p.m. on December 8, 2020.

When the Board reconvened at 5 :30 p.m. on December 8, 2020, it continued to follow the revised amended agenda and began with agenda item F., Public Participation. The Board advised that members of the public would be allowed to speak via Zoom for three minutes per person for a total participation period of 30 minutes. All individuals were limited to three minutes for public comment, which was enforced by the Board muting the speakers after their allotted time. - addressed the Board for three minutes, at which point his audio was terminated while he was midsentence. After approximately 30 minutes of public comment, the Board Chair stated, "we have time for one more comment this evening." The recording shows a screenshot of the meeting's Zoom platform, which appears to show a handful of participants on a list raising their digital "hands" to speak; -and-were among those participants. The Board permitted the named person at the top of the list to speak and then concluded the public participation session. Neither■■■■I nor- were invited to address the Board, presumably due to the enforcement of a 30-minute cap on public participation. This office did not observe on the recording that attempted to address the Board. The Board recessed after a three-hour hearing, reconvening the following day at 5:00 p.m. The Board continued to use the revised amended agenda during the December 9, 2020, session of the meeting and then adjourned.

"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 Ill. App. 3d 161, 171 (1989).

Meeting Agenda Section 2.02(a) of OMA (5 ILCS 120/2.02(a) (West 2018)) provides, in pertinent part, that [ a ]n agenda for each regular meeting shall be posted at the principal office of the public body and at the location where the meeting is to be held at least 48 hours in advance of the holding of the meeting. [* * *] Public notice of [ * * * ] any reconvened meeting, shall be given at least 48 hours before such meeting, which notice shall also include the agenda for the special, rescheduled, or reconvened meeting, but the validity of any action taken by the public body which is germane to a subject on the agenda shall not be affected by other errors or omissions in the agenda. The requirement of public notice of reconvened meetings does not apply to any case where the meeting was open to the public and (1) it is to be reconvened within 24 hours, or (2) an announcement of the time and place of the reconvened meeting was made at the original meeting and there is no change in the agenda.

Section 2.02(c) of OMA (5 ILCS 2.02(c) (West 2018)) further states that Any agenda required under this Section shall set forth the general subject matter of any resolution or ordinance that will be the subject of final action at the meeting. The public body conducting a public meeting shall ensure that at least one copy of any requested notice and agenda for the meeting is continuously available for public review during the entire 48-hour period preceding the meeting.

OMA does not define the term "general subject matter." However, the Senate debate on House Bill No. 4687, which added section 2.02(c) to OMA as part of Public Act 97-827, effective [T]here was just no real requirement as to how specific they needed to be to the public of what they were going to discuss that would be final action. And this just says that you have to have a * * * general notice if you're going to have and take final action, as to generally what's going to be discussed so that - that people who follow their units of local government know what they're going to be acting upon. Remarks of Sen. Dillard, May 16, 2012, Senate Debate on House Bill No. 4687, at 47.

I and- contend that the version of the agenda available to the public before the December 7-9, 2020, meeting differed materially from the agenda used by the Board in that the publicly posted agenda did not include a reference to the public comment rules that were enforced at the meeting. The City asserted that there was no substantive difference between the agendas. It maintained that the original agenda and revised amended agenda contained the relevant public comment rules.

This office's review of the meeting recordings confirmed that, aside from a short period on December 7, 2020, the Board relied on the revised amended agenda to conduct the meeting in question. That version of the agenda was not posted until 2:54 p.m. on December 7, 2020-after the first session of the meeting and less than 48 hours before the meeting was reconvened on December 8, 2020, at 9:00 a.m. The amended agenda was the version available to the public for 48 hours prior to the December 7, 2020, meeting, and it differed materially from the revised amended agenda. In particular, it did not indicate that the Board intended to adopt rules for public comment that were more restrictive than the rules established and recorded in the Urbana City Code, or that the rules to be adopted generally concerned how the Board conducts public comment or otherwise regulates public participation in its meetings. The public comment rules for meetings conducted on a video and/or audio electronic platform at the time of the meeting were recorded in section 2-5(b )( 1 )( c) of City Ordinance 2020-09-049. Those rules provide, in pertinent part: "Public comment shall be limited to no more than four (4) minutes per person. The public input portion of the meeting shall total no more than one (1) hour unless Accordingly, the Board violated section 2.02(a) of OMA by posting the agenda it used at the meeting-the revised amended agenda-fewer than 48 hours before the December 7- 9, 2020, meeting. Further, the amended agenda did not sufficiently set forth that the Board would be voting on public comment rules for the meeting, in violation of section 2.02( c) of OMA. Although there is no remedy available at this time, this office requests that if the Board has occasion to meet again, it adhere to the agenda requirements in section 2.02 of OMA.

Notice for Reconvened Meetings Section 2.02(a), as noted above, states that "[p ]ublic notice of [ * * * ] any reconvened meeting, shall be given at least 48 hours before such meeting, which notice shall also include the agenda for the special, rescheduled, or reconvened meeting[.]" Section 2.02(a) provides a narrow exception to the 48-hour notice requirement "where the meeting was open to the public and (1) it is to be reconvened within 24 hours, or (2) an announcement of the time and place of the reconvened meeting was made at the original meeting and there is no change in the agenda." (Emphasis added.) -alleges that the Board should have posted notices and agendas for each session of the Board's December 7-9, 2020, meeting. The City countered that the December 7, 2020, meeting was reconvened three times and the exception for 48-hour notice applied because "each reconvening of a meeting occurred within 24 hours of when the respective prior meeting was recessed." 13 It appears that the Board construes the exception to section 2.02(a)'s 48-hour notice requirement as permitting a change to a meeting agenda if "(1) [the meeting] is to be reconvened within 24 hours[ ]" and that the provision "and there is no change in the agenda" applies only to a circumstance in which "(2) an announcement of the time and place of the reconvened meeting was made at the original meeting[.]" 5 ILCS 120/2.02(a) (West 2018).

A statute should not be construed in a way that would defeat its purpose "or yield an absurd or unjust result." Phoenix Bond & Indemnity Co., 194 Ill. 2d 99, 107 (2000). "The word 'or' is disjunctive. As used in its ordinary sense, the word 'or' marks an alternative indicating the various parts of the sentence which it connects are to be taken separately. * * * Disjunctive therefore connotes two different alternatives." Elementary School District 159 v. Schiller, 221 Ill. 2d 130, 145 (2006). However, "or" may be read in the conjunctive-meaning all the elements in the provision must be satisfied-"when a literal reading is inconsistent with an apparent legislative intent." People v. Frieberg, 14 7 Ill. 2d 326, 349 (1992).

This office interprets the phrase "and there is no change in the agenda" as referring both to meetings reconvened within 24 hours and meetings during which an announcement of the time and place of the reconvened meeting was made at the original meeting section. In other words, section 2.02(a) requires a public body to post notice and an agenda 48 hours in advance of a meeting whenever the agenda changes, regardless of when or how a meeting is reconvened. One of the purposes of OMA is to ensure proper advance notice of meetings and actions to be taken, and therefore it is of utmost importance that the public have advance access to the agenda that a public body uses during a meeting. Although the use of "or" in the language in of section 2.02(a) would commonly be understood to provide two alternative circumstances for permitting changes in the agenda of a reconvened meeting, it would contradict the purpose of OMA to permit a public body to alter the agenda of a meeting reconvened within 24 hours of the meeting without providing notice of additional subjects of final action or even notifying the public when and where the meeting would reconvene. 5 ILCS 120/1 (West 2018)) ("The General Assembly further declares it to be 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."). It would be consistent with the intent of the Act to construe the exception in section 2.02(a) of OMA as permitting an open meeting to be reconvened without additional notice only if (1) it is to be reconvened within 24 hours, (2) an announcement of the time and place of the reconvened meeting was made at the original Public Comment Section 2.06(g) of OMA (5 ILCS 120/2.06(g) (West 2018)) provides that "[a]ny person shall be permitted an opportunity to address public officials under the rules established and recorded by the public body." Under the plain language of section 2.06(g), a public body must establish and record rules and may restrict public comment only pursuant to those rules. See Ill. Att'y Gen. Pub. Acc. Op. No. 14-009, issued September 4, 2014, at 7.

As detailed above,-addressed the Board twice on December 7, 2020, for a total of six minutes. -also addressed the Board for three minutes on December 7, 2020. -addressed the Board a third time during its December 8, 2020, 5:30 p.m. session. During that meeting, was muted midsentence after he had addressed the Board for three minutes. Further, and-had their hands raised but were not permitted to address the Board on December 8, 2020, presumably due to the enforcement of a 30-minute cap on public participation. This office did not observe that attempted to address the Board during the December 8, 2020, meeting.

This office concluded above that the Board failed to provide sufficient advance notice of its intention to adopt rules for public comment limiting each person to three minutes for a total of 30 minutes of public participation. Because the Board approved the public comment rules without providing adequate advance notice, its action was invalid. Therefore, the public comment rules were not properly "established and recorded" during the periods for public comment on December 7, 2020, or December 8, 2020. While the Board argued that it provided a total of 38 minutes of public participation over the course of two days, it had not adopted any rules prior to the first three people providing public comment at the December 7, 2020, hearing. The Board nonetheless enforced a three-minute limit per person on those individuals. Additionally, the Board chair stated at the morning portion of the December 8, 2020, meeting that the Board was starting from scratch, suggesting that it was starting over the public comment portion of the hearing. Under these circumstances, by enforcing its time limits, the Board improperly restricted- and from addressing the Board.

As noted previously, the City stated that the Board only convenes when there is an objection to a nominating petition for a candidate. Because the election relevant to the candidates at issue has since passed, there is no remedy that can address this violation. This office reminds the City and Board that it must provide members of the public an opportunity to Reasonable Access After submitting his Request for Review,_ e-mailed this office to allege that the Board improperly restricted public access to the December 7-9, 2020, meeting in violation of section 2.01 of OMA (5 ILCS 120/2.01 (West 2018)). He stated that the Board members, objectors, attorneys, and candidates were physically present in the meeting room along with "two or more other members of the public, who were not participants in the hearing[.]" 14 -stated that the doors to the City building were locked and the Board did not permit physical access to the meeting for other members of the public or the press. He did not allege that anyone sought to attend the meeting in person and was turned away.

Section 2.01 of OMA provides, in relevant part, that "[a]ll meetings required by this Act to be public shall be held at specified times and places which are convenient and open to the public." The concept of public convenience implies "a rule of reasonableness, not 'absolute accessibility' but 'reasonable accessibility."' Gerwin v. Livingston Co. Board, 345 Ill. App. 3d 352, 362 (2003). This office has previously determined that under the particular, unprecedented circumstances of the COVID-19 pandemic, and pursuant to the Governor's Executive Orders and the requirements of section 7( e) of OMA 15 that permit remote meetings during public health emergencies provided that certain conditions are met, a public body may fulfill the "convenient and open to the public" requirement by providing legitimate means for members of the public to access open meetings remotely. For example, this office has determined that a public body complied with section 2.01 of OMA when it facilitated public access to a meeting using audio conference technology when there was an Executive Order in place limiting the size of in-person gatherings and prohibiting all interested members of the public from attending the meeting in person. See,for example, Ill. Att'y Gen. PAC Req. Rev. Ltr. 63372, issued September 17, 2020, at 4-5. This office has also determined that it was not unreasonable for a public body to prioritize physical attendance for certain individuals but accommodate others only through video conferencing. See Ill. Att'y Gen. PAC Req. Rev. Ltr. 64497, issued September 3, 2020, at 3. Further, this office has concluded that a public body did not violate section 2.01 when it admitted individuals who showed up to attend a meeting in person despite the fact that the meeting had been listed on the agenda as a remote meeting and was being broadcast through Zoom. See Ill. Att'y Gen. PAC Req. Rev. Ltr. 64541 64857, issued April 8, 2021, at 5.

The Public Access Counselor has determined that resolution of these matters does not require the issuance of a binding opinion. If you have any questions, please contact me at [email protected]. This letter serves to close these files.

Very truly yours, LAURA S. HARTER Deputy Bureau Chief Public Access Bureau 65997 66324 o consol 201 proper 202 improper 206g improper elec bd