As the COVID-19 pandemic continues and case counts increase, more public bodies are discussing whether they should go back to remote meetings. We thought it might be helpful to provide a brief "FAQ" to provide information on some of the most commonly asked questions about remote meetings. Note that because the COVID-19 pandemic (and the Governor's actions) remain very fluid, you should always consult with your legal counsel if you have questions about a meeting of your particular board, council, commission or committee.
Q1: Even though the Governor's executive order relaxing the OMA in-person requirements expired last month, can our public body still meet remotely?
Yes, a public body can meet without a physical quorum present so long as (1) there is a state-issued disaster declaration related to public health concerns in place over all or part of the jurisdiction of the public body; (2) the head of the public body determines that an in-person meeting is not practical or prudent because of the disaster; and (3) the public body follows the rules and procedures contained in section 7(e) of the OMA. See 5 ILCS 120/7(e).
Q2: Is there still a state-wide disaster declaration in effect?
Yes, the Governor issued another COVID-19 disaster declaration on July 23, 2021. The July 23, 2021 disaster declaration is in effect until August 22, 2021. Given the increasing case counts, it is likely the Governor will issue another disaster declaration later this month.
Q3: What type of determination does the head of the public body have to make?
Section 7(e) of the OMA doesn't provide much in the way of practical information as to what constitutes "practical or prudent" to satisfy the statutory requirements for holding a remote meeting. While the Governor did issue a new disaster declaration, he did not extend his state-wide finding that in-person meetings are not feasible. As a result, public bodies that decide to meet remotely under section 7(e) may want to support their decision with specific, and if appropriate, localized findings about the impact of the pandemic.
For example, the head of the public body might point to the current trend regarding increasing test positivity rates in making his or her determination that an in-person meeting is not practical or prudent. The head of a public body might also look at local or regional vaccination rates, increasing case counts, the impact of new variants, or increased hospitalizations to support the required determination.
Q4: Does this determination have to be made for every meeting?
Although not expressly addressed in the OMA section that authorizes remote meetings, it seems reasonable to interpret the statute to require the head of the public body to make an individual determination for each meeting, particularly given the fluid nature of this pandemic. That finding could be made by including it on each meeting notice or agenda and/or the head of the public body could verbally recite his or her finding at the beginning of the meeting.
Q5: If we do meet remotely, what rules do we have to follow?
Most public bodies have met remotely at some point during the COVID-19 pandemic, and the rules that were established by the General Assembly last June when it enacted Section 7(e) of the OMA are still in place. A summary of these rules is below, but you may want to review the statute itself to make sure you are complying with all of the procedures for this type of remote meeting.
1. A Governor or IDPH-issued disaster declaration related to public health concerns must be in place that covers all or part of the public body.
2. The head of the public body must make a determination that an in-person meeting is not practical or prudent because of a disaster.
3. All members of the public body must be verified and must be able to hear one another and all discussions and testimony.
4. Members of the public must be able to contemporaneously hear all discussion, testimony, and voting at open meetings at the meeting place or, if that is not feasible, then the public must be provided alternative ways to attend the meeting (i.e., web-based link, telephone number, etc.).
5. The head of the public body, attorney, or chief administrative official must be physically present unless it is not feasible due to the disaster.
6. All votes must be by roll call.
7. 48 hours' notice must be given in accordance with the OMA unless a bona fide emergency exists.
8. Members attending remotely are considered part of the quorum.
9. Remote meetings must be recorded by audio or video means and the recordings must be made available to the public.
Q6: If a public body decides to hold an in-person meeting, can some members attend electronically?
Yes, so long as the public body follows the "traditional" method of remote attendance in Section 7 of the OMA. In order to utilize that method for remote attendance, the public body must have enacted a policy that authorizes this type of attendance. There must be a physical quorum of the public body present at the meeting place. The member must be approved for electronic attendance per the requirements of the written policy. Finally, there are only 3 reasons that authorize remote attendance under this "traditional" procedure: (1) personal illness or disability; (2) a family or other emergency; or (3) employment purposes or business of the public body. Vacation is not an authorized reason under this alternative procedure.
Stay tuned for a follow-up FAQ on public attendance at remote meetings.
