During the COVID-19 pandemic,
many local governments have been meeting by audio or video conference without a
physically present quorum, consistent with the executive orders signed by
Governor Pritzker.
During its recently concluded
special session, the Illinois General Assembly passed legislation that will
help local governments hold meetings without a physically present quorum during
a declared public health disaster, such as those related to COVID-19. If
Governor Pritzker signs SB
2135, as expected, local governments may have to adjust their remote
participation practices to ensure their meetings comply with the new law.
Under the bill, public bodies may
hold open or closed meetings by audio or video conference without a physically
present quorum under the conditions described below.
Preparing for the Meeting
Disaster Declaration Required
First, the Governor or the
Illinois Department of Public Health must make a disaster declaration for all
of part of the public body’s jurisdiction related to public health concerns.
The recent Gubernatorial Disaster Proclamations related to COVID-19 would
satisfy this condition while they are in effect.
Determination by Head of Public Body
Next, the president, mayor,
chairman, or other person holding primary executive and administrative
authority for the local government must determine that an in-person meeting
would not be practical or prudent because of the disaster.
Notice to Public Body Members and News Media
The public body must notify its
members, and the news media that requested notice of meetings, that the meeting
will be held by audio or video conference without a physical quorum. The notice
should also be posted on the public body’s website.
In the case of a bona fide
emergency, notice should be given to the news media that requested notice as
soon as practicable, but in any event prior to the holding of such meeting. The
presiding officer must state the nature of the emergency at the beginning of
the meeting.
Notice of Alternative Public Attendance
If the disaster makes physical
attendance by the public unfeasible, the public body must make alternative
arrangements that will allow any interested member of the public access to
contemporaneously hear all discussion, testimony, and roll call votes, such as
by offering a telephone number or a web-based link. Those arrangements should
be included in the required notice.
Public Body Bears Costs
The public body must bear all
costs associated with complying with the requirements for meetings by audio or
video conference without a physical quorum. In other words, a local government
should not use an audio or video conference service that charges members of the
public to participate.
When the Meeting Starts
Record the Meeting
In general, local governments are
not required to record their meetings, except for closed session. However, they
must keep a verbatim record in the form of an audio or video recording for
meetings without a physical quorum. These recordings must be made available to
the public and are otherwise subject to the Act’s provisions regarding
maintenance, review, and destruction of closed session recordings.
Minimum Physical Presence, if Feasible
Unless the disaster makes it
unfeasible, at least one member of the public body, the chief legal counsel, or
the chief administrative officer must be physically present at the regular
meeting location.
Make Sure Participants Can Hear One Another
The public body should verify the
participating members and make sure they can hear one another and all
discussion and testimony. The public body should also make sure that any
physically present members of the public can hear the discussion and testimony.
The reference to “testimony”
suggests the General Assembly intended to facilitate public hearings without a
physically present quorum.
Determine a Quorum
Each member of the body
participating in a meeting by audio or video conference should be considered
present for purposes of determining a quorum and participating in all proceedings.
During the Meeting
Roll Call Votes Required
All votes should be done by roll
call during a meeting without a physical quorum, so each member’s vote can be
identified and recorded.
Minutes and Public Comment
Meetings without a physical
quorum are still subject to the requirements of Section 2.06 of the Open
Meetings Act. In addition to complying with closed session verbatim recording
requirements, public bodies should keep minutes as they ordinarily would. In
addition, members of the public must still have an opportunity to address the
public body, under its adopted rules.
Next Steps
The Governor is expected to issue
a new disaster proclamation before the current one expires on May 30, 2020. With
the last disaster proclamation, the Governor has reissued the executive order
facilitating local government meetings without a physical quorum. As of this
writing, it remains to be seen whether the Governor will reissue that executive
order again and/or sign this new legislation to help local governments meet
during the ongoing COVID-19 pandemic. Either way, when the Governor signs SB
2135, local governments should be prepared to adjust their remote meeting
practices to comply with the new law.
Post authored by Daniel J. Bolin
