People v. Bertrand, 2012 IL App (1st) 111419 (September 28, 2012).

Voting abstentions & the Public Officer Prohibited Activities Act

Open Meetings Act - OMA
Case: People v. Bertrand, 2012 IL App (1st) 111419 (September 28, 2012).
Date: Friday, September 28, 2012

A three-member Board of Trustees (Board) held a meeting where two of its members attended. Two members equal a quorum on this type of public body. The members who attended the meeting were Mr. Bertrand and Ms. Mallory. During the meeting, they went into closed session to discuss a proposed settlement agreement of a lawsuit against the Board, brought by Mr. Bertrand. When the closed session ended, Ms. Mallory moved for the Board to approve a settlement agreement with Mr. Bertrand. Mr. Bertrand seconded the motion. Ms. Mallory voted “yea,” and Mr. Bertrand abstained from voting. The Board considered the motion passed.

Community members sued the Board over this motion. Then, the Ill. Attorney General intervened (took over). It argued that the settlement agreement was void for two reasons: (1) Mr. Bertrand’s actions violated section 3(a) of the Public Officer Prohibited Activities Act (“Act”) because he participated in the negotiation of the settlement agreement, and (2) Ms. Mallory’s one yea vote out of a quorum of two members did not equal a majority to pass the motion for approval of the settlement agreement.

Agreeing with both arguments, the court held the settlement agreement was void. First, the court held that Mr. Bertrand had personal pecuniary interests that conflicted with his duty not to use his elected office for his own financial gain. Conflict of interest statutes are passed to “discourage this type of ethical dilemma and the abuses that stem from it.” Second, the court held that although the Board had a quorum and could legally hold a meeting with a quorum of two, one vote for the proposed settlement agreement was not enough to pass the motion. A majority means the number greater than half of any total. When an affirmative vote of yes is required (e.g., expenditures of money), then only an actual “yea” or “aye” vote is counted toward passage of the motion. Any abstention or attempt to vote other than “yea” or “aye”, including abstaining, operates as a “nay” vote. Mr. Bertrand’s abstention had the effect of a “nay” vote.