Illinois (ECWd) -
The Governor's recent Executive Order includes numerous closures and restrictions on businesses, but one item in particular, the suspension of parts of the Open Meetings Act, appears to have crossed the line and not within the powers given to the Governor except for those conducting State Business and State Agencies.
What can the governor do as it relates to suspending statutes of the state according to the statutory references cited in the E.O.?
20 ILCS 3305/7 - (1) To suspend the provisions of any regulatory statute prescribing procedures for conduct of State business, or the orders, rules and regulations of any State agency, if strict compliance with the provisions of any statute, order, rule, or regulation would in any way prevent, hinder or delay necessary action, including emergency purchases, by the Illinois Emergency Management Agency, in coping with the disaster.
While the Open Meetings Act applies to all public bodies, the power of the Governor is limited to only suspend regulatory statutes prescribing procedures for the conduct of State business and orders, rules, and regulations of any State Agency and only if those orders, rules, and regulations hinder or delay necessary action, including emergency purchase, by the Illinois Emergency Management Agency.
Local governments do not conduct State Business nor are they a State Agency, not to mention they have nothing to do with emergency purchases by the Illinois EMA.
The EO outlines the following for the Open Meetings Act.
"Section 6. During the duration of the Gubernatorial Disaster Proclamation, the provisions of the Open Meetings Act, 5 ILCS 120, requiring or relating to in-person attendance by members of a public body are suspended. Specifically, (1) the requirement in 5 ILCS 120/2.01 that "members of a public body must be physically present" is suspended; and (2) the conditions in 5 ILCS 120/7 limiting when remote participation is permitted are suspended. Public bodies are encouraged to postpone consideration of public business where possible. When a meeting is necessary, public bodies are encouraged to provide video, audio, and/or telephonic access to meetings to ensure members of the public may monitor the meeting and to update their websites and social media feeds to keep the public fully apprised of any modifications to their meeting schedules or the format of their meetings due to COVID-19, as well their activities relating to COVID-19."
We are of the opinion the Governor needs to amend the EO and make it clear that it only applies to those who conduct State Business and State Agencies, which is all he was given the power to deal with as it relates to suspending provisions of law.
As the EO applies to State Agencies, the requirement for public officials to be physically present and remote participation rules have been suspended, all other provisions still stand. The EO encourages several methods for public bodies to provide access to meetings, however, there is no mention of the fact the people have a right to speak at ALL public meetings and those meetings must still be held in a location convenient to the public.
We suspect the first time a meeting gets held in secret by phone, or the public is not provided their right to speak, we will see court filings against those agencies.
We have found no provision in the law which permits the Governor to suspend any part of the Open Meetings Act as it applies to Local Governments.
The EO clearly cites the statutes they are using to invoke these powers and none of those cited provide the power to suspend any part of the Open Meetings Act for local government.