City of Harvey violated OMA by requiring proof of residency to attend public meeting

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 , Ms. Krebs, and Ms. Morakalis:

This determination is issued pursuant to section 3.5(e) of the Open Meetings Act OMA) ( 5 ILCS 120/ 3.5(e) ( West 2022)). For the reasons explained below, the Public Access Bureau concludes that the City of Harvey (City) City Council (Council) violated OMA in connection with a gathering at Harvey City Hall on September 7, 2023. This office further concludes that the Metropolitan Water Reclamation District of Greater Chicago (District) Board of Commissioners ( Board) did not violate OMA in connection with the same gathering.

On September 8, 2023, this office received Request for Review alleging that the Council and Board required members of the public to show proof of Harvey residency, including showing identification to armed officers, in order to attend a gathering held on September 7, 2023, to discuss an upcoming stormwater management project in the City of Harvey ( City). Request for Review included a partial video recording of the gathering.

On September 19, 2023, this office forwarded copies of the Request for Review to the Council and Board and asked each of them to provide this office with a written response addressing any requirements imposed on members of the public to attend the gathering, the reasons for any such requirements, whether any individuals were prohibited from attending, and whether the Council and Board believed the September 7, 2023, gathering constituted a meeting" as defined in section 1.02 of OMA. 1 On October 3, 2023, and October 16, 2023, this office received responses from the Council. On October 4, 2023, and October 20, 2023, this office forwarded copies of the Council' s responses to . On October 18, 2023, this office received the Board's response. On October 20, 2023, this office forwarded a copy of the Board' s response to . On October 23, 2023, replied to the responses by the Council and Board.

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 Ill. App. 3d 161, 171 ( 1989). Section 2(a) of OMA2 provides that "[ a]ll meetings of public bodies shall be open to the public unless excepted in subsection (c) and closed in accordance with Section 2a." Section 2.01 of OMA3 further provides, in pertinent part: " All meetings required by this Act to be public shall be held at specified times and places which are convenient and open to the public." Among other things, OMA also requires public bodies to provide advance notice of meetings, permit an opportunity for public comment, and approve and maintain minutes.4 The letter also provided information about the stormwater management project, noting that the District would install a water basin in the City.

In their responses to Request for Review, the Board and Council did not dispute contention that access to the September 7, 2023, gathering was limited to individuals with identification demonstrating that they were Harvey residents. Instead, both public bodies argued that the gathering was not a meeting subject to OMA.

Section 1.02 of OMA defines a "meeting" as:

A]ny gathering, whether in person or by video or audio conference, telephone call, electronic means ( such as, without limitation, electronic mail, electronic chat, and instant messaging), or other means of contemporaneous interactive communication, of a majority of a quorum of the members of a public body held for the purpose of discussing public business[.] ( Emphasis added.)

If a gathering of public body members constitutes a " meeting," then all the procedural safeguards and requirements of OMA apply, including providing access to members of the public regardless of where they reside.

Neither the Council nor the Board disputed that a majority of a quorum of its members attended the September 7, 2023, gathering at Harvey City Hall. However, in their responses to this office, they each contended that their members did not discuss among themselves the public business of the City or the District, characterizing the event as intended to provide information to residents affected by the imminent stormwater management project. In his reply, explained that residents and some members of the Harvey City Council did not know what information was included in the ordinance the Council previously passed authorizing the project, and that members of the Council were prohibited from sharing certain information with the public. Due to this lack of information, argued that the September 7, 2023, gathering was a meeting subject to OMA, as it was "the only time residents The Office of the Attorney General has stated, "whether a gathering falls within the definition of meeting as used in the Act, would depend upon the peculiar facts in each situation." 1974 Ill. Att'y Gen. Op. No. S-726, issued March 22, 1974, at 126. "In theory, there is no absolute prohibition against the members of a public body attending an 'informational meeting' without triggering the application of" OMA, as long as the members do not make d]eliberational statements" or engage in "unrecorded discussions" amongst themselves. Ill. Att'y Gen. Op. No. 95-004, issued July 14, 1995, at 10-11. In that opinion, the Attorney General concluded that the " mere fact that a majority of a quorum of the members of a public body attend and participate in a bona fide presentation on new legislative developments in an area of public concern" did not make the presentation subject to OMA, but the extensive discussions of public business by members of two county boards during the presentation did trigger the requirements of OMA. (Emphasis in original.) Ill. Att'y Gen. Op. No. 95-004, at 10-11; see also Nabhani v. Coglianese, 552 F. Supp. 657, 661 (N.D. Ill. 1982) (a gathering does not constitute a meeting for purposes of OMA when there is " no examining or weighing of reasons for or against a course of action, no exchange of facts preliminary to a decision, [and] no attempt to reach accord on a specific matter of public business.").

Discussion by Members of the Board In its response to this office, the Board noted that Commissioner Yumeka Brown provided "introductory remarks regarding the MWRD's role in the Project and stormwater management in Cook County." 7 This office' s review of the recording provided by confirmed that the remarks were limited in scope to providing the basis for MWRD staff to answer questions from members of the public, including the background on both the Board and the Council's actions leading to the project. Therefore, the remarks were merely informational rather than deliberational statements, and no other commissioner commented or weighed in right after this introduction. The Board stated that the District's Engineer and Head Assistant Attorney also made statements regarding the process underlying the project and the roles that both the Council and the Board played in approving the project.

Under these circumstances, this office cannot conclude that this gathering, in which only two commissioners made limited remarks, constituted a " meeting" of the Board under the definition in section 1.02 of OMA. However, this office urges the members of the Board to use caution in future gatherings of a majority of a quorum to avoid potential violations.

Discussion by Members of the Council In its first response to this office, the Council acknowledged that three aldermen made comments, but argued that its members "did not engage in the collective inquiry of deliberations and exchange information in anticipation of possibly taking further action[,]" 9 citing Ill. Att’y Gen. Pub. Acc. Op. No. 23-003, issued March 14, 2023, at 7. The Council described the members' participation as follows:

Corean Davis, the City Administrator, attended the September 7, 2023, gathering. Davis recalls the following City Aldermen make comments: Alderwoman Shirley Drewenski, Alderwoman Colby Chapman, Alderman Tracy Key. Each Alderman expressed their familiarity with location subject to MWRD's water basin project and their hope that MWRD’s project will benefit the subject households from future flooding. Alderwoman Chapman made a comment regarding the location of In the cited binding opinion, the Attorney General concluded that a gathering in which a majority of a quorum of a library board held a " Meet and Greet" where " staff members presented questions and concerns about substantive library issues" met the definition of a meeting under OMA. 11 In that matter, the board contended that the gathering was an informal gathering intended to allow staff employees to get to know the trustees and to ask questions or present concerns to the board. 12 Although there was no indication that the board attempted to reach an accord on any matters, the Attorney General noted that "[ t]he requirements of OMA apply not only to those gatherings in which public bodies take formal actions, but also to discussions of public business for the purpose of collecting information."13 Because the trustees had engaged in the collective inquiry phase of deliberations by gathering and exchanging information on issues of library business, the Attorney General determined that the board improperly held a " meeting" without following OMA' s requirements. 14 This office' s review of the September 7, 2023, video recording found that at least four members of the Council, including the Mayor,15 spoke during the meeting, discussing the history of the project and decades of flooding in the City. Because the Council had already voted to initiate the project, much of the discussion pertained to issues within the purview of only the Metropolitan Water Reclamation District staff about how to proceed with the project. Some of this discussion also concerned whether alternative sites for the project had been explored. Additionally, several comments from members referenced the continuing concerns of residents throughout the City and the need for additional future projects. The members also briefly interacted with each other at times, including the Mayor asking a member for confirmation regarding the history of the project.

In accordance with the conclusions set forth above, this office requests that the Council, to the best of its ability, create and approve minutes for the meeting and make them available for public inspection. Because the Council did not take any action at this meeting, no further remedial action is required. The Council should be mindful of the potential for gatherings of a majority of a quorum its members to constitute a meeting even if the gathering is not for the purpose of taking final action.

The Public Access Counselor has determined that resolution of this matter does not require the issuance of a binding opinion. This letter serves to close this matter. If you have any questions, please contact me at [email protected] or (773) 590-7878.

Very truly yours, BENJAMIN J. SILVER Assistant Attorney General Public Access Bureau 78085 78204 o 102 proper improper mun spd Via electronic mail The Honorable Kari K. Steele President Metropolitan Water Reclamation District of Greater Chicago 100 East Erie Street Chicago, Illinois 60611 kari.steele@mwrd. org