Heyl Royster

 

Spotlight on OMA, FOIA and Other Legislation

By: Keith Fruehling, kfruehling@heylroyster.com

New Changes to the Open Meetings Act (OMA) for 2013:

Resolutions and Ordinances

One change requires that posted agendas for meetings at which final action will be taken on any resolution or ordinance must include "the general subject matter" of the resolution or ordinance. The intent of the agenda is to advise the public of the intended business of the public body. Both Attorney General rulings and decisions by Illinois courts have determined that an agenda description such as "discuss/pass ordinance" is insufficient and must be made more descriptive. This change codifies those rulings into the Act. (5 ILCS 120/2.02(c))

Notice / Agenda Availability

Another amendment requires that the notice and agenda of a public meeting must be continuously available for the public to review for the 48-hour period preceding the meeting. There have been reports in which a public body has skirted this issue by posting the notice and agenda where it is not readily viewable by the public. For example, they posted the notice and agenda on a Friday evening in the interior of the building for a meeting scheduled for the following Monday evening. Compliance may be accomplished, for example, by posting the notice and agenda on the interior window of the building's entry doorway or alternately in an externally mounted bulletin board that is publicly accessible. (5 ILCS 120/2.02(c))

Website Postings

The amendment also establishes that posting of the notice and agenda on a website maintained by the public body for the 48-hour pre-meeting period satisfies this second requirement. It is important, however, that one distinguishes the above-posting option from the requirement of the public body to post minutes on a website where that website is maintained by a full-time staff member. (5 ILCS 120/2.02(c) and 2.06(b))

Effect of Failure to Comply

A failure to comply with the new amendment that the notice and agenda of a public meeting is continuously available for the public to review for the 48-hour period preceding the meeting may result in invalidation of any meeting or action taken at that meeting, unless the non-compliance is due to actions outside of the control of the public body.

For those staff members and trustees who are responsible for the preparation and posting of notices and agendas for public meetings, beginning January 1, 2013, there will be two more requirements with which to comply.

In short, make sure that the notice and agenda for public meetings are:

  • Complete, accurate and descriptive;
  • Posted not less than 48-hours before the meeting; and
  • Posted at the public body's corporate offices and the location of the meeting in a place that is accessible to the public for not less than the 48-hour period before the meeting.

In addition to becoming familiar with the new Open Meetings Act requirements effective January 1, 2013, this is a good time for public bodies to refresh their knowledge on a couple of the more recent changes under the Open Meetings Act.

Other OMA Related Reminders

OMA Training

Sections 1.05(a) and 1.05(b) of the act require completion of the on-line Public Access Counselor's certification for Open Meetings Act designees (5 ILCS 120/1.05(a)) and elected/appointed members (5 ILCS 120/1.05(b)).

Section 1.05(a) mandates annual continuing education for Open Meetings Act designees. However, it does not set forth the details of the annual training on the act. In other words, there are no details regarding the "how, when, where or how much" annual training is required. All designees attending professional conferences and seminars should obtain certifications or written proof of Open Meetings Act training, and file copies with their governmental body. 

New Office Holders

Section 1.05(b) added by (P.A. 97-0504 which became effective January 1, 2012), requires that members holding office/position on any public body complete the Public Access Counselor's Open Meetings Act online curriculum during calendar year 2012. Any new members elected or appointed on/after January 1, 2012, have 90 days to complete the same training.

This training is a one-time requirement. Copies of certificates of completion must be filed with the local government.

Note that a "public body" subject to OMA is broadly defined in Section 1.02, to include "all legislative, executive, administrative or advisory bodies of… counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus,… and any subsidiary bodies of any of the foregoing including but not limited to committees and subcommittees which are supported in whole or in part by tax revenue, or which expend tax revenue[.]" [emphasis added] (5 ILCS 120/1.02)

Timeline on minutes

Section 2.06(b) of the act mandates that a public body approve the minutes of its open meetings within 30 days after that meeting or at the public body's second subsequent regular meeting, whichever is later. This requirement was added by P.A. 96-1473 which became effective January 1, 2011. That change also required that minutes of meetings open to the public be available for public inspection within 10 days after the approval of the minutes by the public body. (5 ILCS 120/2.06 (b))

Public Comment

Finally, P.A. 96-1473 also added Section 2.06(g) to the act which requires any person be permitted an opportunity to address public officials at their open meetings under the rules established and recorded by the public body. (5 ILCS 120/2.06(g))

Legislation to Keep Your Eye On

Freedom of Information Act – FOIA

Three bills remain alive in the Illinois legislature at this time. Each of those bills – whether in the House or the Senate – are set forth below. The two bills that remain alive in the House are focused on establishing mandates on local governmental entities to provide responses to FOIA requests via e-mail as opposed to the US Mail.

The sole matter that remains alive in the Senate is SB 1514 and is focused on adding circumstances that would qualify governmental entities subject to the act to pay penalties for lack of compliance.

HB 2747 - (Still alive in the House) (Conroy) amends FOIA to require any public body that has more than five employees to respond to FOIA requests via email.

HB 2930 - (Still alive in the House) (Unes) amends FOIA to authorizes and, in some circumstances requires, a public body to respond by electronic mail to requests for public records that it has received by electronic mail.

SB 1514, Amendment No. 1 - (Still alive in the Senate) (Biss) amends FOIA to expand the situations in which a public body would be liable to pay attorneys' fees.

Other Legislation Making Its Way Through the Illinois House

House Bill 1555 - (Passed the House) (Dillard) - The bill as amended essentially requires the Illinois Transparency & Accountability Portal to provide direct access to documents many local governments already compile and forward to state officials such as the Comptroller and the Treasurer. It also includes reports relating to pension data that is typically compiled by local police and fire pension boards or others. The language of the bill does not address whether it is State officials' office, pension boards or the unit of local of government that will be required to provide the required information to ITAP.

House Bill 1562 – (Passed the House) – (Demmer) The purpose of this Bill is to require counties and municipalities to establish a local finance & audit committee. This committee may be comprised of members of the corporate authorities or other officials or members of the public. Counties and municipalities may establish a new committee, use an existing committee or establish a committee of the whole to meet this requirement. The committee shall be required to review and inspect the treasurer's books, bank accounts and any other financial transactions. In addition, the committee shall review the audit and management letter. The intention of this legislation is to add an additional safeguard in an attempt to prevent government fraud. The bill legislation passed the House unanimously and now goes to the Senate for their consideration.