Shelby County State’s Attorney responds to Attorney General Public Access Counselor

Shelby – (ECWd) –

During the December 7, 2020, Shelby County Board reorganizational meeting, the State’s Attorney advised it was ok for a board member to attend the meeting by phone.  That action resulted in a tie vote for County Chairman.  We covered that meeting in this article which contains the video as well.

The State’s Attorney was asked to get an opinion on the legality of allowing the board member to attend by phone.  We waited approximately 6 weeks before filing an FOIA to the Attorney General for all requests for an opinion by Shelby County State’s Attorney and the result was no request for any opinion on the matter in question. That being the case, we filed a request for review for an alleged OMA violation on the last possible day we could do so, which is 60 days from the date of the meeting.  We did so for two primary reasons.  First, to get an opinion from the PAC on the matter in question because they claimed to have no opinions on the situation in a prior FOIA, second, to ensure the public knows if the action was proper or not.

A copy of the State’s Attorney’s response can be read at this link.

We find some confusion in the multi page response.

• “I researched the issue and observed that the Governor’s Executive Order 2020-07 suspended the requirement of in-person attendance by members of a public body. It specifically suspended I. “the requirement in 5 lLCS 120/2.01 that ‘members of a public body must be physically present'” and 2. the conditions in 5 ILCS 120/7 limiting “when remote participation is permitted.” I further observed that the executive order was re-issued and extended through December 12, 2020.”

Our research finds a much different fact.  First, we have not found any power given to the Governor to amend the Open Meetings Act established by the State Legislature.  We wrote about this early on in the pandemic.  Second, while numerous executive orders extend the 2020-07 EO, one, in particular, was never mentioned in her response to the AG Public Access Counselor, specifically EO 2020-39.

From EO 2020-39 – “Section 6 of Executive Order 2020-07, as amended by Executive Order 2020-33, is re-issued and extended through June 27, 2020 or until corresponding legislation (SB 2135) is enacted and takes effect, whichever occurs first.”

SB 2135 was adopted and became Public Act 101-0640 on 6-12-2020 and the applicable OMA changes were effective 6/12/2020 which is well before the meeting in question held December 7, 2020.

• “I recognized that the portion of the Governor’s Executive Order 2020-07 which addressed remote voting was not extended in Executive Order 20-44, presumably because the legislature enacted section 7 ( e) of the Open Meetings Act.”

Nothing in EO 2020-07 dealt with remote voting so not sure why she points to remote voting being addressed. Considering remote voting was not part of EO 2020-07 it is logical that it was not extended in any other order.

The response goes to great lengths providing information on matters that took place at the meeting that has nothing to do with the specific alleged OMA violation, allowing a member to attend by other means than physical presence.  Part of that response on a meeting recess pointed to Roberts Rules.

• “Further, Roberts Rules of Order defines a recess as “a break within a meeting that does not end the meeting or destroy its continuity as a single gathering and after which proceedings are immediately resumed at the point where they were interrupted.”

While we agree with the above definition, we do not believe the Roberts Rules of Order definition of recess has any role when the Open Meetings Act provides specific rules for the reconvening of a meeting and provides how such a recess is to be handled.

From OMA Section 2.02 – “The requirement of public notice of reconvened meetings does not apply to any case where the meeting was open to the public and (1) it is to be reconvened within 24 hours, or (2) an announcement of the time and place of the reconvened meeting was made at the original meeting and there is no change in the agenda.”

•  “Remote voting is not addressed within the rules.”

We agree, remote voting is not addressed within the Shelby County rules, however, that is not the point.  The issue is permitting a member to attend a meeting remotely when there are no rules permitting such attendance. If they are not permitted to attend remotely then there would be no way for them to vote, making the issue of voting moot.

The Open Meetings Act is crystal clear on this point yet nowhere in the response does the State’s Attorney address remote attendance.  Why her focus was on voting misses the point and only creates confusion.

(5 ILCS 120/7) Attendance by a means other than physical presence.
(c) A majority of the public body may allow a member to attend a meeting by other means only in accordance with and to the extent allowed by rules adopted by the public body. The rules must conform to the requirements and restrictions of this Section, may further limit the extent to which attendance by other means is allowed, and may provide for the giving of additional notice to the public or further facilitate public access to meetings.

No rules adopted, no attendance by other means permitted.

• “I have recommended to the Chairman and Board members that the County Board adopt comprehensive rules to ensure that future meetings occur in a structured, efficient and civilized manner.”

We have been attending Shelby County Board meetings for over a year and while there are numerous meetings containing heated debate and discussion, we have not observed a single meeting that was not conducted in a civilized manner.

• “I have also recommended that the Board adopt rules addressing the pandemic.”

While we are not sure what rules she believes should be adopted for a pandemic, the legislature specifically addressed how public bodies are to deal with meetings during a disaster, which she does confirm were not fully complied with.

We provided our response to the PAC and will now await the determination from that office.  We anticipate a confirmation that a Board Member should not have been permitted to attend the December 7, 2020 meeting by other means than physical presence.