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June 18, 2024

AG did not endorse Pecatonica Township’s banning from meetings –

By John Kraft & Kirk Allen

On November 26, 2019

Pecatonica Township (ECWd) –

We understand that the Pecatonica Township Attorney John Nelson, and/or Supervisor Musso, tried to claim that the letter from the Attorney General basically endorsed their banning of a critic from three consecutive meetings.

They are wrong.

What was “endorsed” was only the process of placing a Resolution on the agenda, and voting on it – without any regard to the legality of the subject matter of the Resolution.

The Illinois Attorney General’s Public Access Counselor only has the statutory power to review complaints of violations of the Open meetings Act and the Freedom of Information Act. They cannot look to other state laws to determine if one of those other laws were violated.

In this case, Rogene Hamilton complained to the AG about a Resolution banning her from three consecutive meetings.

The AG determined that “no further action was warranted” because the Open Meetings Act was not violated by the passage of the Resolution. The Resolution was properly placed on the Agenda, and it was voted on in open session. Therefore it complied with the OMA.

The AG did not look at other laws to determine if the Resolution violated any of the other laws or if the township exceeded their authority in the passage of the Resolution. That is not the AG’s job.

The AG did (wrongly, in our opinion) cite to the Kansas Open Meetings Act and a Kansas case of Hirt v. Unified School District No. 287.

The Kansas Open Meetings Act (“KOMA”) and the Illinois Open Meetings Act (“OMA”) are not comparable in their specific language. We will address the KOMA v OMA later in this article.

Further into the letter, the AG stated “The accuracy of the factual content of the Board’s Resolution and whether the Board had sufficient votes to pass the resolution are outside the scope of OMA, therefore are not within this office’s authority to review.”

Additionally, Hamilton did not allege she was prohibited from addressing the Board, and since she did not allege it, even if the Board enforced its Resolution, the action of enforcing the Resolution would not be subject to review by the AG’s office, since the “OMA” does not confer a statutory right on all members of the public the right to attend every meeting (we disagree on the last part).

Hirt v. Unified School District No. 287 and the Kansas versus Illinois Open Meetings Acts:

First, the Hirt case is a Federal District case.

  • KOMA does not state that people have a right to attend a meeting
  • Illinois OMA declares it is “the public policy of the state that its citizens shall be given . . . the right to attend all meetings
  • In Hirt, the Court declared the attendance ban as Moot, since it had already expired
  • In Hirt, the Court declared other parts of the suit as Moot since they had already expired
  • In Hirt, the Court declared that the KOMA was not violated because the school district had the statutory right under school policy to ban people from school property and meetings if they were disruptive – An Illinois Township does not have that statutory right since the right was never granted to them by the Legislature or the Constitution (remember Dillon’s Rule?)
  • In Hirt, the Court declared that the KOMA is to be read with “substancial compliance” – Illinois OMA is read with strict compliance
  • In Hirt (which was conveniently not mentioned by the AG), the Court DENIED the School District’s Motion for Summary Judgment, stating that “Defendants have not persuaded the Court on that point. Accordingly, the Court denied Defendant’s summary judgment motion regarding the ban of Hirt from attending school board meetings.” (this was the First Amendment claim)

Once again, The Kansas OMA and the Illinois OMA are not comparable as to the statutory right to attend and speak at meetings, and other issues within the Hirt case do not transfer to an Illinois Township (like statutory authority to ban people from property).

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1 Comment
  • jannie
    Posted at 08:25h, 27 November Reply

    It has been my experience in my county that this is just par for the course – attorney trying to pull the wool over the eyes of the public and board members – not the first time and will not be the last – Thanks for keeping the public informed and maybe public bodies on the straight and narrow — but on the last, I’m not real hopeful.

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