Barrington School Board unable to confirm compliance with OMA remote meeting rules

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Dear , and Ms. Ficke- Bradford:

December 20, 2022, meeting via telephone without first demonstrating majority consent of the Board.

BACKGROUND

On December 21, 2022, submitted a Request for Review 2022 PAC 74763) alleging that the Board violated section 7 of OMA ( 5 ILCS 120/ 7 ( West 2020)) by allowing Board member Leah Collister Lazzari to attend its December 20, 2022, meeting via telephone without satisfying any of the three exceptions for remote attendance as outlined under section 7( a) of OMA ( 5 ILCS 120/ 7( a) ( West 2020)). On January 3, 2023, and January 9, 2023, and submitted Requests for Review 2023 PAC 74885 and 2023 PAC 74985, respectively) alleging the same violation. also alleged that the Board failed to vote to allow Ms. Collister Lazzari to attend the meeting 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 ofthat 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 audio conference.

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 of the 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.

Under the plain language of these provisions, a public body with a quorum physically present has the discretion to permit a member to participate in the meeting by other means for any of the three purposes set forth in section 7( a) of OMA, and the public body's decision to permit a member's remote attendance will not be disturbed unless it is clearly unreasonable or contrary to the public body's remote attendance rules. See Ill. Att'y Gen. PAC Req. Rev. Ltr. 33937, issued June 8, 2015, at 3.

The Board provided this office with a copy of its adopted rules allowing for remote attendance as required by section 7( c), which paraphrase sections 7( a) and 7( b) of OMA:

Provided a quorum is physically present, a Board member may attend a meeting by video or audio conference if he or she is prevented from physically attending because of: (1) personal illness or disability, ( 2) employment or District business, or ( 3) a by video or audio means, he or she must notify the recording secretary or Superintendent at least 24 hours before the meeting unless advance notice is impractical. The recording secretary or Superintendent will inform the Board President and make appropriate arrangements. A Board member who attends a meeting by audio or video means, as provided in this policy, may participate in all aspects of the Board meeting including voting on any item. 111 Pursuant to section 7( b) of OMA and the Board's adopted rules, a Board member who wishes to attend a meeting by audio or video conference is required to notify the recording secretary or Superintendent at least 24 hours before the meeting, unless impractical. The Board' s legal counsel provided a copy of an e- mail that Ms. Collister Lazzari sent the Superintendent and his executive assistant, who serves as the Board' s recording secretary, on November 29, 2022, stating that she would participate in the December 6, 2022, meeting, and probably the December 20, 2022, meeting as well, by telephone because she would be " out oftown on business. i2 The word "business" encompasses a variety of activities and subjects. Black's Law Dictionary 226 9th ed. 2009) ( defining " business" to include commercial enterprises, occupations or employment, commercial or noncommercial transactions, and " matters that come before a deliberative assembly for its consideration and action.") " Business" also is broadly and somewhat ambiguously defined to include "[ o] ne' s rightful or proper concern or interest[;]"

received no information contradicting Ms. Collister- Lazzari' s representation. i3 Yet section 7( a) of OMA only permitted the Board to allow Ms. Collister Lazzari to attend the meeting remotely if she was out of town on Board business or business related to her employment. Her notification to the Recording Secretary that she was " out of town on business[ ]" did not specify either of those reasons.

and provided copies of e- mails obtained via FOIA that were sent among individual Board members and District staff and referenced Ms. Collister Lazzari' s absence as being for both vacation and business. However, neither those internal correspondences or other information provided to this office clearly establishes whether Ms. Collister Lazzari' s physical absence concerned her own employment purposes or Board business. Thus, it is unclear from the available information if a permissible reason for remote attendance applied under section 7( a) of OMA and the Board' s rules.

Even assuming Ms. Collister Lazzari was eligible to attend the meeting remotely, the Board did not meet OMA' s procedural requirements for allowing her to do so. Neither the plain language of sections 7( a)-( c) of OMA nor the Board's adopted rules on remote participation expressly require a roll call vote. Rather, the relevant statutory language specifies, and the Board's codified rules more generally provide, that a majority of Board members physically present " may allow" a member to remotely attend a meeting upon receipt of advanced notice and due to one of the three reasons outlined above.

the public body may allow" plainly refers to an action that may be taken by a public body. In particular, the word " majority" connotes a vote or other means of assessing whether more members of a public body approve of doing something than disapprove. Likewise, the phrase may allow" signifies an action, even if procedural in nature, to authorize the physically absent member to participate in the meeting. This office has reviewed relevant portions of a publicly - available recording4 of the Board' s December 20, 2022, meeting, which reflects Ms. Collister Lazzari' s participation via telephone in an attendance roll call at the start of the meeting. However, at no point did the Board express some form of majority consent to permit Ms. Collister Lazzari to attend the meeting remotely. Accordingly, this office is unable to conclude that the Board established that a majority of the Board members physically present consented before allowing Ms. Collister Lazzari to remotely attend the December 20, 2022 meeting pursuant to section 7( a) of OMA.

Based on this office' s review of the December 20, 2022, meeting minutes provided with the Board' s response, Ms. Collister Lazzari' s votes on various items of final action did not determine their outcome. Accordingly, no action is required by the Board under these circumstances to remedy its violation of OMA. However, the Board may avoid future violations of section 7( a) of OMA by altering its rules to require a majority vote or, at a minimum, asking if any of the physically present members object to allowing remote attendance. In addition, the Board should ensure that the notification to the Recording Secretary indicates that a Board member who asks to attend a meeting remotely clearly identifies a permissible reason for doing so under section 7( a). To be sure, a public body that does not have reason to believe it is receiving inaccurate information is not obligated to take measures to verify that a member has a legitimate reason for remotely attending a meeting. When a member provides an ambiguous reason for attending a meeting remotely, however, and it is unclear if the member is even eligible to attend the meeting remotely under section 7( a) of OMA and the Board' s established and recorded rules, the Board may need to obtain additional clarification from the member before determining whether to consent to the member' s remote attendance.

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 the Springfield address on the first page of this letter. This letter serves to close these files.

Very truly yours, CHRISTOPHER R. BOGGS Deputy Public Access Counselor Public Access Bureau 74763 74885 74985 o 7 attendance improper sd cc: Via electronic mail Mr. Brian P. Crowley Franczek P. C.

300 South Wacker Drive, Suite 3400 Chicago, Illinois 60606 bpc@franczek. com