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Thursday, February 23, 2012

OMA Bill Would Require "Sufficiently Descriptive" Agendas

Earlier this month, a bill was introduced that would amend the Illinois Open Meetings Act in two respects.  First, House Bill 4687 would require that meeting agendas be "sufficiently descriptive" to give the public reasonable notice of the items that will be considered or acted on a meeting.  Second, the bill would require public bodies to have at least one copy of a meeting notice or agenda continuously available for public review during the 48 hour period prior to the meeting.

The bill would add a new paragraph (c) to section 2.02 as follows:

(c) Any agenda required under this Section shall be sufficiently descriptive to give the public reasonable notice of the items that will be considered or will be the subject of final action at the meeting. The body conducting a public meeting shall ensure that at least one copy of any requested notice and agenda for the meeting is continuously available for public review during the entire 48-hour period preceding the meeting.

The new bill is problematic for a couple of reasons.  First, the initial sentence seems to be at odds with paragraph (a) of section 2.02 that provides that:  "The requirement of a regular meeting agenda shall not preclude the consideration of items not specifically set forth in the agenda."  This provision was at issue in the 2002 appellate court case, Rice v. Board of Trustees of Adams County.  Ultimately, the Rice court concluded that a public body could not take final action on an item unless it was listed on the agenda; however, the court determined that this provision would allow a public body to consider items not listed on the agenda under 2.02(a) because "consideration" is in the nature of deliberations and discussion, not action.  The proposed legislation does not eliminate this language nor does it address the internal inconsistency within section 2.02 between the language of paragraph (a) and the new provision in paragraph (c).

Furthermore, the "sufficiently descriptive" language is likely to create more confusion for local governments in complying with the new requirement.  It also adds a "layer" of statutory ambiguity that seems unnecessary.  First, the statute itself uses the term "germane" for agenda items for special, rescheduled, and reconvened meetings.  A recent appellate court interpreted that language to allow actions that are "closely related or germane" to the listed item on an agenda.  This same language could be applied to regular meeting agendas.  Second, the appellate court in Rice required an agenda to provide "sufficient advance notice to the people" of the action to be taken.  Either or both of these interpretations would provide sufficient guidance to local governments in determining how detailed an agenda must be.

Finally, it is not clear what the second sentence of the proposed legislation adds to existing law since the OMA already requires a public body to post an agenda at least 48 hours before a meeting.  5 ILCS 120/2.02(a).  It is possible one could argue that the current statutory language would allow a public body to remove the agenda at any time after posting; however, the agenda and public notice are still public records available for inspection or copying under the Illinois Freedom of Information Act.

The IML opposes the bill, citing concerns with the potential for litigation against local governments because of the ambiguity of the new language.

UPDATE:  July 19, 2012, Governor signs bill into legislation (later version).

Post Authored by Julie Tappendorf, Ancel Glink


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