Legal Matters
From a Distance: Legislature Addresses OMA in a Public Health Emergency

By Debra Jacobson

Governor JB Pritzker recently signed legislation amending the Open Meetings Act (OMA) to permit a public body to meet without the presence of a physical quorum when the Governor or Director of the Illinois Department of Public Health (IDPH) has issued a disaster declaration due to public health concerns. Public Act 101-640, effective June 12, 2020, codified the governor’s prior Executive Orders, which had suspended the physical quorum requirement in OMA due to the impact of COVID-19 in Illinois.

However, P.A. 101-640 goes well beyond the prior Executive Orders because it requires a public body to satisfy a number of conditions before, during, and after a meeting in order to utilize the flexibility to meet remotely without a physical quorum. The law requires deliberation and planning about the need to meet remotely; boards cannot avoid in-person meetings simply because they may be more convenient or preferred by a board or a particular community. 

Once a disaster declaration due to public health concerns has been issued by the governor or IDPH director, boards must now take the following steps to hold a meeting without a quorum of their members present at the meeting location:
 
Before the Meeting
  • The board president (or vice president or superintendent, depending upon availability) must determine that an in-person meeting (or meeting with a quorum of board members present) is not feasible because of the disaster. Although not required by the law, as a best practice, a board may want to document this determination in the meeting notice itself as evidence of compliance with this requirement.
  • One board member, the board’s attorney, or the superintendent must arrange to be present at the regular meeting location unless their presence is determined to be unfeasible.
  • A 48 hours’ notice of a regular or special meeting must be given on the district’s website and to any news media that have requested notice of meetings, except in the event of a bona fide emergency.
  • If there is a bona fide emergency and 48 hours of notice cannot be provided, the board must notify the public and news media as soon as practicable and prior to the meeting. The nature of the emergency must also be stated at the beginning of the meeting.
  • If in-person attendance by the public is not feasible, the board must make alternative arrangements for members of the public to access and hear the meeting, and to offer public comment. The Illinois Attorney General has advised that those arrangements be included in the meeting notice.
During the Meeting
  • Verify that all board members participating in the meeting are present and can hear one another and all discussion.
  • Verify that all members of the public present at the meeting location can hear the discussion and votes, or if in-person attendance is not feasible, that the public is able to access and hear all discussion and votes (such as through a conference call or web-based link).
  • Conduct all votes by roll call.
  • Make a verbatim audio or video recording of the open meeting.
After the Meeting
  • Make the verbatim record of the open meeting available to the public
  • Consult the board attorney for guidance on the destruction of verbatim recordings of open meetings. The OMA amendment applies the process for destroying closed session verbatim recordings to the destruction of verbatim open session recordings.
To assist boards with OMA compliance under these circumstances, subscribers to the Policy Reference Education Subscription Service (PRESS) can refer to sample policy 2:220, School Board Meeting Procedure, and the checklist in exhibit 2:220-E9, Requirements for No Physical Presence of Quorum and Participation by Audio or Video During Disaster Declaration. Some board attorneys may also recommend certain language to be read aloud at the start of a meeting to confirm compliance and maintained as part of the meeting minutes.

It is important to remember that if a board decides it needs to meet remotely under these circumstances as now permitted by OMA, all of the other requirements under OMA continue to apply, including provisions for public comment, agendas, closed sessions, and meeting minutes. Additionally, whether a board decides to meet remotely or in-person, the Illinois Attorney General’s guidance urges public bodies to provide the public with remote access to meetings and “to update their websites and social media with the goal of openness and transparency during this time.” This guidance aligns with the general requirement in OMA that meetings be held in places that are open and convenient to the public. The guidance also outlines specific safety considerations for in-person meetings, such as holding the meeting in a larger space than normal, using a separate room for public viewing to promote social distancing, and recording the meeting for those unable to attend during the health crisis.
 
Debra Jacobson is Assistant General Counsel for the Illinois Association of School Boards.