City of Blue Island Zoning Board did not violate OMA by requiring oath for public comment

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Dear and Mr. Johnson:

This determination is issued pursuant to section 3.5(e) of the Open Meetings Act OMA) (5 ILCS 120/3.5(e) (West 2022)).

BACKGROUND

On October 11, 2023, submitted a Request for Review 2023 PAC 78515) to the Public Access Bureau alleging that the City of Blue Island ( City) Planning and Zoning Board of Appeals (Board) violated OMA at its October 5, 2023, meeting by requiring members of the public to be sworn in before providing public comment on a redevelopment plan for a property that formerly housed a hospital. She asserted that the Board's attorney " told the crowd that under the law in public hearing, people who made public comments were considered to be witnesses who were giving testimony in a courtroom and therefore were required to be sworn in." 1 contended that this announcement deterred members of On December 5, 2023, submitted a Request for Review ( 2023 PAC 79224) alleging that the Board also violated OMA at its November 2, 2023, meeting by similarly requiring a member of the public to be sworn in before providing public comment on a proposed amendment to the City's zoning code:

When public comment was called, a citizen came forward to speak, the Board attorney told the citizen that he had to be sworn in * * * as he was giving legal testimony to the Board. The citizen said he was not testifying nor wanted to be sworn in, but only to give comment on an issue to the board. The Board Attorney told the citizen that he was not allowed to give any comment of any kind at the hearing without being sworn in.[3]

On October 27, 2023, this office forwarded a copy of 2023 PAC 78515 to the Board and asked it to provide this office with copies of the October 5, 2023, meeting agenda and minutes, together with a written response to OMA allegation. On November 21, 2023, this office received the requested materials. On November 28, 2023, this office forwarded a copy of the Board's response to she replied on December 5, 2023.

On December 14, 2023, this office forwarded a copy of 2023 PAC 79224 to the Board and asked it to provide the same materials with respect to the November 2, 2023, meeting. On January 18, 2024, this office received those materials. On January 22, 2024, this office forwarded a copy of the Board' s response to she replied on January 30, 2024.

DETERMINATION

Section 2.06(g) of OMA (5 ILCS 120/2.06(g) (West 2022)) provides that "[ a]ny person shall be permitted an opportunity to address public officials under the rules established and recorded by the public body." This provision "requires that all public bodies subject to the Act provide an opportunity for members of the public to address public officials at open meetings." Ill. Att'y Gen. Pub. Acc. Op. No. 14-012, issued September 30, 2014, at 5. A public In response to 2023 PAC 78515, the Board did not dispute that its counsel made a statement at the October 5, 2023, meeting concerning the swearing in of witnesses but asserted that this statement was legally correct as related to public hearings. The Board explained:

A public hearing on a zoning matter is a quasi-judicial proceeding during which the Board of Appeals collects evidence on the application before it. Such hearings are commonly done during properly noticed public meetings pursuant to OMA.

Contrary to those who speak during the public- comment portion of the meeting itself, citizens who address the Board of Appeals after a public hearing has been opened are sworn in as witnesses prior to speaking. This is so the applicant and any other interested parties have a chance to respond to and/ or rebut any citizen testimony and build an official record for appeal.[4]

According to the Board, public hearings are conducted in accordance with the zoning provisions of the Municipal Code ( 65 ILCS 5/11-13-1.1 (West 2022)) and the City's code of ordinances, which provide that "[ c]itizens who wish to speak during such hearings must testify under oath as witnesses and are sworn in prior to giving testimony." 5 The Board stated that it started the October 5, 2023, meeting at 7:06 p.m. and "opened the floor to public comment pursuant to its adopted Rules for Public Comment[.]" 6 The Board asserted that members of the public could speak on any items in the agenda, including special-use applications, during this session. At 7:18 p.m., within the meeting, the Board opened the public hearing on the application involving the former hospital and heard sworn testimony from the applicant and members of the public. The Board contended that every person " who wanted to speak during the public hearing had the In response to 2023 PAC 79224, the Board presented the same argument, asserting that it provided an opportunity for public comment at the start of the November 2, 2023, meeting and later conducted the hearing in question in accordance with provisions of the Municipal Code and City ordinances governing public hearings. The Board acknowledged that one individual declined to be sworn in, but contended that it "closed the Public Hearing" and gave the individual "another opportunity to address the Board[,]" aside from the designated public comment session that preceded the opening of the public hearing. 8 In reply to the Board' s answers, argued that section 11-13-3(e) of the Municipal Code (65 ILCS 5/11-13-3(e) (West 2022)) "clearly states that all meetings of the PZBA are public meetings[,]" and that OMA and the City's public comment ordinance " do not require speech to be sworn testimony[.]" 9 She further argued that the Municipal Code provisions cited by the Board " apply to witnesses that have been called or subpoenaed by the property owners affected by the special use permit. None of the members of the public wishing to speak had been called or subpoenaed as witnesses." 10 It is undisputed that the Board asked individuals to be sworn in before speaking during the public hearing portions of the October 5, 2023, and November 2, 2023, meetings, but this office' s review of the meetings' minutes confirmed that the Board held a designated public comment session after roll call at the two meetings. The minutes document that during the two meetings, members of the public either spoke during the designated public comment session or provided testimony during the public hearings. Neither OMA nor the Board's public comment rules require members of the public to be sworn in before addressing the members of the Board. There is no indication, however, that the Board required individuals to be sworn in before speaking during the designated public comment sessions.

With respect to the November 2, 2023, meeting, the minutes reflect that five members of the public spoke on various topics during the designated public comment session. The Board asserted that the individual at issue was provided opportunities to speak during this With respect to the October 5, 2023, meeting, asserted in her reply that the Board held a separate public comment session, but "they also told the public not to address the issue of the old Metro South Hospital at that time. They said the Hospital development would be discussed later in the meeting at a public hearing. That discouraged dozens of people from making comments at that time." 12 This office recognizes concern that such statements could have misled or deterred members of the public from speaking during the designated public comment session. However, the draft October 5, 2023, meeting minutes provided for this office's confidential review indicate that more than ten individuals nonetheless spoke during the hearing, and the individuals freely expressed their opinions–– some expressed their support for the proposed redevelopment plan, while others were critical of it. One individual declined to take an oath but did not have comments on the application; instead, this individual commented on the swearing-in requirement. Many of the individuals also asked questions about the redevelopment plan, and the applicants and their representatives provided a response. Members of the public then provided additional public testimony.

Based on the available information, this office is unable to determine that members of the public were prevented or deterred from addressing the Board concerning the redevelopment plan. Although observed some individuals leaving after the Board attorney' s announcement concerning the swearing in of witnesses, it is not clear13 that those individuals left because they had been asked or encouraged to wait until the public hearing to speak and were unwilling to do so under oath. It appears that a number of individuals stayed for the public hearing and had questions regarding the proposed redevelopment plan. The available information suggests that the public hearing provided a chance for the applicant to respond specifically to questions and comments from the public, which would not have been provided Although the Municipal Code authorizes municipalities to adopt "rules relative to the time and manner in which hearing officers are designated to conduct public hearings and rules governing the manner in which such hearings are conducted[,]" 15 those rules are distinct from established and recorded rules governing public comment under OMA. The Board should be mindful that a rule requiring individuals to be sworn in to testify during public hearings is not applicable to the separate portion of Board hearings in which members of the public have an opportunity to comment under section 2.06(g) of OMA, even if the speaker wishes to comment on the topic of the public hearing.

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 Supervising Attorney Public Access Bureau 78515 79224 o consol 206g proper mun cc: Via electronic mail Ms. Sara M. Gallagher Attorney for Blue Island Planning and Zoning Board of Appeals Montana & Welch, LLC 192 North York Street Elmhurst, Illinois 60123 sgallagher@montanawelch. com