Shelby Co. (ECWd) -
In what may be the most cryptic opinion we have ever seen from the Attorney General's PAC office, it is clear the county board violated the Open Meetings Act when they permitted a board member to attend remotely during the reorganizational meeting in December of 2020.
While the agenda for the meeting made no mention of the meeting in question being held under Section 7(e) provisions, a requirement under OMA, the PAC ignored that point and appears to point to State's Attorney Nichole Kronke's legal advice as to compliance, which it was not.
"The Board did not state who determined that an in-person meeting was not prudent, but it noted that Shelby County State's Attorney Nichole Kroncke "advised the County Board that Ms. Bennett should be allowed to vote remotely"
Why would bad legal advice be noted? It has no bearing on the fact the public body failed to comply with key requirements, of which several are outlined in the very letter from the AG. The same letter that they claim they can't conclude a violation occurred?
From the letter:
"In its response to this office, the Board stated that it did not have a rule addressing remote voting, and this office's review of the Board's rules confirmed that it also does not have rules concerning remote attendance as described in section 7(c) of OMA."
Such a finding points to an OMA violation as the Board failed to have a rule on remote voting. In what appears to be a duck and cover for the bad advice by the State's Attorney, the PAC shifts to allege the meeting was held under section 7(e).
Of interest, the meeting was not held in accordance with 7(e) as claimed and all they had to do was read the agenda to see that fact.
Two key provisions that were ignored by the PAC, State's Attorney, and County Board:
(4) for open meetings, members of the public present at the regular meeting location of the body can hear all discussion and testimony and all votes of the members of the body, unless attendance at the regular meeting location is not feasible due to the disaster, including the issued disaster declaration, in which case the public body must make alternative arrangements and provide notice pursuant to this Section of such alternative arrangements in a manner to allow any interested member of the public access to contemporaneously hear all discussion, testimony, and roll call votes, such as by offering a telephone number or a web-based link;
(7) Except in the event of a bona fide emergency, 48 hours' notice shall be given of a meeting to be held pursuant to this Section.
The fact the county board failed to provide notice of the meeting to be held under section 7(e)(7) points to a clear violation, just as not having a policy for remote attendance for a regular meeting. Read the agenda and you will see there was no compliance for providing alternative arrangements in a manner to allow any interested member of the public access to contemporaneously hear all discussion, testimony, and roll call votes, such as by offering a telephone number or web-based link. An issue we pointed out during the meeting.
If the public body is relying on section 7(e)7 then they must comply with all the requirements, which they did not. Such failure constitutes an OMA violation, even though the PAC mysteriously can't seem to conclude any violation took place. How special is it that within the PAC's own letter they point to certain obligations that were not met yet were unable to conclude a violation?
Of interest for future PAC determinations, they should not rely on the recordings provided as they did in this case. We use a professional bullet microphone that picks up things the human ear does not. Relying on such a recording fails to address the actual event. In this case, numerous people said they could not hear but that was ignored because of the audio we provided. We suggest affidavits in the future rather than recordings taken with professional equipment or a recording sitting next to the speakerphone.
The PAC stated:
"Accordingly, based on the available information, this office is unable to conclude that the Board did not meet the requirements of sections 7(e)(2), 7(e)(3), and 7(e)(4)."
How special that they make no mention of all 10 items under 7(e). Instead, they point to three of the 10 items they imply were complied with and ignore the rest.
The closing statement says all we need to know:
"In the future, if the Board wishes to permit remote member attendance pursuant to section 7(c) of OMA for any of the reasons specified under section 7(a), it should establish and record a Board rule permitting such remote attendance if it has not already done so."
We have submitted a request for a reconsideration of their findings as they clearly miss the mark on numerous matters.
A copy of our request for reconsideration can be read at this link.