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Monday, March 16, 2020

Can We Suspend Government Meetings and Compliance with Sunshine Laws During the Covid-19 Crisis?

We continue with our article series on best practices for local governments in navigating COVID-19 issues. This afternoon, we discuss governmental meetings, Open Meetings Act issues and Freedom of Information Act issues.

As we disclaimed before, we are not virologists. We’re just attorneys trying to help local governments establish a framework to stay out of legal trouble during this unprecedented time of national emergency. In general, it’s probably best to keep your local government functioning as normally as possible to the extent possible – even though we’re currently developing a new normal.  The first issue you will have to address is whether you should stay open and continue to hold your governmental meetings.  Because this is a fluid situation, what you may decide is best this week may change next week. The public relies on government for services and information during times of crisis. As you wrestle with that decision and navigate the daily management of public health issues related to the control of this virus, follow the recommendations of the Center for Disease Control, the Illinois Department of Public Health and your local health department. The more you can maintain flexibility to respond as we receive new information, the better off you will be. 

Many of the questions we have been getting pertain to open meetings, compliance with the Freedom of Information Act, and annual town meetings of electors that townships are required to hold on April 14th. As discussed below, the best advice we can give you is to follow the laws that are currently in place, unless you absolutely cannot.  

Let’s talk about open meetings. First, it’s helpful to think about the management of this epidemic in stages. We are essentially in the first stage of management of this issue. During this stage, the articulated goal is to attempt to suppress the virus so that we do not overwhelm our hospitals and healthcare providers, and to decrease exposure to disease for our vulnerable populations. 

With a few exceptions, there is no clear directive to local governments regarding what they should be doing, so you may be doing something different than your neighboring community.  However, Governor Pritzker has adopted a couple of executive orders related to this. First, he has mandated that all large-scale events exceeding 1,000 individuals be canceled for the next 30 days. He has encouraged that community events of 250 people or more should be canceled or postponed until May 1st, including personal and social events.  For events less than 250 people, residents should closely consider who is likely to attend the event and, if it includes vulnerable populations, strongly consider canceling. He has ordered all K-12 schools closed through March 30th. From this, we know that, at a minimum, we must cancel our local government events that fall within these categories. 

But what do we do with our governmental programs and events that usually have less than 250 people or even less than 50 people in attendance?  This is a policy decision for your government; not a legal issue. It appears that the best recommendation for now is to cancel all non-essential events, but certainly rely on the best information you have in your jurisdiction. Many governments provide services to senior citizens, so it is advisable to cancel, suspend or postpone senior events, or any events involving vulnerable populations, even if the expected attendance is much less than 250 people.

As far as your governmental services, you may want to consider temporarily limiting all non-essential functions, or only continuing those non-essential functions that do not involve public interaction.  Also, evaluate your operations to determine whether and how services can be provided in a manner that reduces face to face contact and eliminates group gatherings.

What do you do if you have a board or council meeting that is to occur this week? It really depends on your specific government. Use common sense, considering two factors. First, consider how many people usually attend your meetings. If you normally have your board members and only 2 members of the public attend your meeting, it’s probably safe to proceed. If you generally have a roomful of people because your government has a lot of controversy going on, perhaps it’s best to cancel this meeting and reschedule it when it’s safer to have large groups gather. You know which category your government falls into. 

Second, are there items on your agenda that you are required by law to act on in March (such as bill payment and establishing your annual town meeting agenda)?  If you can significantly pare down the items to only essential items, do so. We know that township governments are concerned about the fact that they must all hold their annual town meetings on April 14th pursuant to the Illinois Township Code, and that Townships are required to adopt their agendas for these meetings by March 30th.  There is currently no law permitting these meetings to be postponed or continued. Governor Pritzker’s office is aware of this situation and will consider addressing this situation, but until that happens, proceed as if the meetings are to occur. If you have already adopted your annual town meeting agenda, then you’re fine, but if you have not, you are required by law to do so prior to March 30th. You can hold a very short township meeting and address only this item and public comment.  If you have concerns about confined space in your meeting room, you could hold a quick meeting in your township’s parking lot and satisfy both the Township Code and the Open Meetings Act.

On the other hand, if your government does not have any critical items to be addressed this month, and if you can simply cancel your meetings for the remainder of March without it hindering your operations or without it causing your public body to take an action that is required this month, it is perfectly legal to cancel the meeting.

We are aware that public entities are concerned that there may be an ongoing need to cancel public meetings past March. We have heard that Governor Pritzker is considering a temporary expansion of the current electronic participation laws to permit additional officials to participate by phone, but nothing has been adopted yet. We will simply have to monitor developments related to this as they develop.

In the meantime, if you have the ability to broadcast or livestream your meetings, that’s a fantastic option, and you may want to encourage the public not to attend in person and permit them to submit public questions ahead of time. Of course, if you have a meeting and people want to attend in person, you cannot bar them from doing so, but if you are eliminating controversial items from your agenda, there is a lesser likelihood that people will attend.  And to clarify:  When we say you can remove non-essential items from your agenda, we do not mean that you can remove that controversial item and then take secret action on that item “off the record” later. The bottom line is this:  The Open Meetings Act remains in effect and you must follow it to the best of your ability until there is further legislation or an executive order to address this.

We have also received questions regarding whether public bodies can suspend the Freedom of Information Act’s time limits. As of the publication of this post, there has been no repeal of FOIA.  Keep in mind, however, that if your government is closed on certain days, the days that you are not open for business would not be counted as “business days” for purposed of calculating the response period for FOIA requests.  Under these circumstances, you can certainly try to reach an agreement with the requester for additional time, but until some relief is provided, you must comply with FOIA.

Post Authored by Keri-Lyn Krafthefer, Ancel Glink


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