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Wednesday, September 24, 2014

OMA Claims Must Be Brought Within 60 Days

The School Facility Occupation Tax Law authorizes a county board in Illinois to impose a sales tax for school facility purposes if the voters approve the tax by referendum.  In this unreported case, Williamson County passed an ordinance imposing a countywide sales tax after the voters approved a referendum authorizing the tax.  P and S Grain, LLC v. Williamson County, 2014 IL App (5th) 130507-U.  The ordinance was voted on at a regular county board meeting, pursuant to an agenda item that referred to the action item as "Superintendent of Schools Resolution."  The ordinance was subsequently corrected and approved at a later meeting, pursuant to an agenda that listed the item as "Amend Ordinance 08-02-29-02, An Ordinance Imposing School Facility Retailers' Occupation and Service Occupation Taxes-Section 6."  

Shortly after approval of the amended ordinance, the state began collecting the tax.  From 2008 through 2012, about $23 million in taxes were distributed to county area school districts.  Two retailers subject to the tax filed a lawsuit claiming that the ordinance imposing the tax violated the Open Meetings Act because the agenda was not specific enough to notify the public that the county board would be adopting an ordinance to impose the tax.  The complaint also alleged a variety of other claims, including that the ordinance exceeded the county's authority.

The trial court ruled against the plaintiffs, finding that the claim that the first ordinance violated the OMA was time-barred because it was not brought within 60 days of the alleged violation.  As for the claim that the second ordinance violated the OMA, the trial court held that the agenda was adequate to meet the requirement of the OMA that the agenda "set forth the general subject matter of any resolution or ordinance that will be the subject of final action at that meeting" as required by section 2.02(c) of the OMA.  The trial court also rejected the plaintiff's authority argument.

On appeal, the appellate court agreed with the trial court that the plaintiff's first OMA claim was barred by the 60-day statute of limitations.  The appellate court also upheld the trial court's ruling that the county board's approval of the second ordinance did not violate the OMA, finding that the agenda was "specific enough to put the public on notice that action would be taken on a resolution imposing the sales tax."  

Although the court did not get into the substance of the plaintiff's allegations on the agenda description for the first ordinance, had the plaintiff's claim been timely, it is entirely possible that the agenda description "Superintendent of Schools Resolution" would not have met the OMA requirements of section 2.02.  Local governments should be mindful when they describe ordinances and resolutions that will be voted on at meetings to be sure that their agendas don't run afoul of section 2.02.  

Post Authored by Julie Tappendorf


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