PAC Issues Binding Opinion Regarding Alleged OMA Violations for Improper Board Meeting Action and Remote Participation

The Illinois Public Access Counselor (PAC) issued its seventh binding opinion of the year, finding a Village Board of Trustees violated the Open Meetings Act (OMA) by taking improper action to authorize the purchase of a vehicle without adding it as an agenda item. The PAC also concluded, however, that the Village Board did not violate the OMA by permitting a Board member to regularly attend Board meetings remotely due to employment-related travel.

At issue was a request for review to the PAC alleging two violations of the OMA. First, that at a regularly-scheduled Board meeting, the Board improperly took final action to authorize the purchase of a vehicle without first including the purchase as an item on the meeting agenda. The agenda for the meeting at issue included an item titled “Report from the Superintendent of Public Works.” When the Superintendent of Public Works provided such report, he stated that he found a vehicle the Village could purchase with public funds. During the same meeting, the Board motioned to purchase the truck and approved the purchase. Section 2.02(a) of the OMA requires public bodies to post regular meeting agendas at least 48 hours in advance of the meeting at the public body’s principal office, the meeting location, and on the public body’s website. Agendas must “set forth the general subject matter or any resolution or ordinance that will be the subject of final action at the meeting.” The PAC found that the Board failed to properly include an action item for the vehicle purchase on the agenda and therefore, the purchase was not in compliance with the OMA. The Board, however, properly added the vehicle purchase to its agenda for a subsequent meeting and voted in favor of the purchase again. As such, the PAC concluded that the Board remedied its violation by providing sufficient advance notice of the truck purchase on the subsequent meeting agenda, as required under Section 2.02(a) of the OMA.

The second alleged violation was that the Board violated the OMA by permitting a Board member to attend three regular Board meetings remotely. In the request for review, the requester alleged that the Board member knowingly took a job that required him to travel and often was within one hour’s drive of the meeting location, which the requester argued was a commutable distance for physical presence. Pursuant to Section 7(a) of the OMA, a public body may allow remote attendance for one of four enumerated reasons: personal illness or disability, employment purposes or the business of the public body, a family or other emergency, or unexpected childcare obligations.

The PAC concluded that the Board did not violate the OMA by allowing the Board member to attend the meeting remotely, as he was not able to be physically present due to employment purposes—an allowable reason for remote attendance under the OMA. The PAC reasoned that the OMA does not limit the nature or frequency of employment-related obligations that may cause a Board member to attend meetings. The PAC further reasoned that the OMA does not require that the public body demonstrate that it would be impractical for a board member to travel to the meeting to allow remote attendance for employment purposes. Further, the PAC stressed that the OMA only authorizes a board member to attend a meeting remotely if the majority of the public body permits such attendance and if such attendance complies with the board’s policies. Here, the PAC found that these factors were satisfied and therefore, found no OMA violation.

This decision serves as a reminder that, in order to take action at a board meeting, public bodies must first include the proposed action on the meeting agenda. To the extent improper action is taken, a public body should consider remedying the error by providing notice on a subsequent meeting agenda 48 hours in advance and re-voting on the item at the properly noticed meeting. Additionally, this decision confirms that public bodies may permit remote attendance for employment purposes without nature or frequency limitations, if such attendance complies with board policy and the public body permits remote attendance. If you have any questions regarding this decision or the OMA generally, please reach out to one of the authors of this post or any Franczek attorney.