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Tuesday, September 10, 2013

A Failed Motion to Approve is No Longer a Denial?

A firefighter applied for a disability pension with the Chicago pension board.  The pension board held a hearing, took evidence, and then voted on a motion to approve the pension.  Two members of the pension board voted in favor of the application and five members voted against granting the pension.  Therefore, the motion to grant the pension failed, and the pension board issued a written decision denying the pension application.  The firefighter appealed, and the circuit court affirmed the board's decision on its merits.  It's in the appellate court that this case got a little confusing. 
On appeal, the appellate court vacated the decision.  The appellate court did not reach the merits of the action and instead remanded the case back to the pension board with instructions that the board take formal action on the pension application.  Although the pension board clearly voted on a motion to approve the pension (that failed 2-5), the appellate court held that the pension board failed to adopt, by a majority affirmative vote, "any motion whatsoever disposing of the application and approving a written decision as required by the Open Meetings Act."  Howe v. Retirement Board of the Firemen's Annuity and Benefit Fund of Chicago, 2013 IL App (1st) 122446.  In other words, although the pension board assumed that its failure to grant the pension resulted in a denial of the pension application, the appellate court thought otherwise.
The basis for the court's ruling was two-fold.  First, decisions of administrative agencies must be in writing.  Second, final action must be taken by a public vote.  Although the pension board did take final action on a motion to approve the pension application, that motion failed.  It did not, the court noted, take an affirmative vote in public to deny the pension application.  Also significant to the court's ruling is the pension board's failure to take formal action to approve the written decision to deny the pension application.  Instead, the pension board circulated the written final decision to the pension board members.  The decision was signed by the five members who voted against the pension application, and was dated the same date as the meeting at which the vote was taken.  The appellate court also rejected the pension board's argument that the 60 day statute of limitations contained in Section 3 of the Open Meetings Act applied, finding that the limitation only applies to new lawsuits by persons seeking declaratory or injunctive relief for an OMA violation. 
There are a couple of troubling issues with this case. 
The appellate court could have relied on the failure of the pension board to vote on the actual written decision at an open meeting as the basis for its ruling.  However, the court did not stop there and seems to suggest that a failed motion to approve does not result in a formal denial of a particular action.  Instead, the court would appear to expect a public body to either (1) anticipate the outcome of the vote on a particular action item before a motion is initiated so it makes the appropriate motion or (2) take multiple votes on the same action item - i.e., if the initial motion to approve fails, then the public body must go through the machinations of making and voting on a second motion to deny. This is neither practical or legally required.  Here, state law is clear that an affirmative majority vote is required in order to grant a pension.  Thus, it stands to reason that a failed motion to grant the pension is a denial of that pension.
Further, the Open Meetings Act clearly provides a 60 day statute of limitations.  Nothing in the OMA restricts the limitations period to lawsuits to enforce the OMA, as the court suggests.  There is a valid reason for such a limitations period - to provide some certainty to the actions of public bodies. If those actions can be opened up at any time sua sponte (as happened in this case), there will be no certainty or finality to the actions of public bodies.  This is particularly true here, where both the pension board and the plaintiff/firefighter argued that the statute of limitations applied to this case.


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