Standing Committee on Government Lawyers
May 2003 VOL. 4, NO. 5
Statements or expressions of opinion or comments appearing herein are those of the editors or contributors, and not necessarily those of the association or section.
Contents
* High-tech hits home: Can local government officials use electronic communication tools without violating the sunshine laws?
* Are Illinois counties required to pay a judgment entered against a sheriff in his official capacity?
By Charles Gunnarson, Springfield
For my last column, I would like to provide you with advance notice of an upcoming continuing legal education (CLE) event, as well as to thank some hard-working members of the Committee on Government Lawyers.
Please mark your calendars for the afternoon of Friday, September 12, 2003, as the Committee on Government Lawyers will again present the CLE program, "Ethical Considerations in Public Sector Law." The program will be presented in Springfield to provide our downstate colleagues with the opportunity to attend. James Grogan, Chief Counsel of the Attorney Registration and Disciplinary Commission, will again lend his expertise to the program as moderator, and the several members of the Committee will again contribute their acting abilities to the project. More details on the event will follow in the coming months.
I would also like to thank those Committee members who have served as chairs of our various subcommittees during the past year. Kate Kelly and Lynn Patton did an excellent job in compiling and editing our newsletter, which has had a consistently high level of quality in its content issue after issue. Cindy Ervin was instrumental as chair of the legislation subcommittee in ensuring the ISBA heard the position of government practitioners on pending legislation. Pat Hughes prompted the Committee to consider new ways of building interest in the ISBA on the part of government practitioners as chair of the Membership subcommittee. Roz Kaplan and Marc Loro were a large part of the success of the Committee's first CLE program and its Mid-Year Meeting reception as co-chairs of the Programs and Services subcommittee. Marc Loro was also responsible for the development of efforts by the Committee to recognize long-term government practitioners as chair of a newly-formed recognition subcommittee.
Although there is much work left to be done, I am confident that with Marc Loro as the Committee's next chair and the continued hard work of the Committee, the Committee on Government Lawyers will continue to expand its efforts to serve the needs of government practitioners in Illinois.
By Al Swanson and Sharon L. Eiseman
Part I: Does a meeting under the Open Meetings Act require physical presence?
By Al Swanson, Chicago
A. Electronic meetings
It is the public policy of this State that public bodies exist to aid in the conduct of the people's business and that the people have a right to be informed as to the conduct of their business. In order that the people shall be informed, the General Assembly finds and declares that it is the intent of the Open Meetings Act to ensure that the actions of public bodies be taken openly and that their deliberations be conducted openly. 5 ILCS 120/1.
Illinois law appears settled that members of public bodies and their committees and commissions may meet by electronic means. In 1982, the Illinois Attorney General issued an opinion that a telephone conference call was an appropriate manner for the State Board of Elections to conduct its business (1982 Ill. Att'y Gen. Op. 124).
For the purposes of the Open Meetings Act, "public body" includes "all legislative, executive, administrative or advisory bodies of the State, counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees or commissions of this State, and any subsidiary bodies of any of the foregoing including but not limited to committees and subcommittees which are supported in whole or in part by tax revenue, or which expend tax revenue, except the General Assembly and committees or commissions thereof." 5 ILCS 120/1.02.
The seminal Illinois case found in a matter of first impression that "there is nothing within the Open Meetings Act which specifically prohibits conducting a meeting by telephone conference or requires members of a public body to be in each other's physical presence to establish a quorum." Freedom Oil Co. v. Illinois Pollution Control Board, 275 Ill. App.3d 508, 515, 655 N.E.2d 1184, 1189 (4th Dist. 1995). In Freedom Oil, the appellate court rejected Freedom's argument that a quorum needed to be physically present in the same room to constitute a meeting.
For the purposes of the Open Meetings Act, "meeting" means any gathering of a majority of a quorum of the members of a public body held for the purpose of discussing public business. 5 ILCS 120/1.02.
The participation of a village trustee by telephone in the consideration of and voting on an annexation issue was not a violation of the Open Meetings Act. People ex rel Graf v. Village of Lake Bluff, 321 Ill. App.3d 897, 748 N.E.2d 801 (2nd Dist. 2001). The appellate court rejected plaintiffs' argument that the trustee's participation by telephone prevented his full participation in the meeting and prevented plaintiffs from fully expressing their views to the trustee. The appellate court found that the Open Meetings Act did not confer upon plaintiffs the right to participate in the hearing. "Rather, the Act's purpose is satisfied so long as meetings are not conducted in secrecy." Graf, 321 Ill. App.3d at 907, 748 N.E.2d at 811. The appellate court also observed that even if the trustee's participation in the meeting and vote by telephone violated the Act, plaintiffs had failed to demonstrate why the extreme remedy of nullifying the village board's action was appropriate. Accordingly, the appellate court rejected plaintiffs' challenge based on a violation of the Open Meetings Act. Graf, 321 Ill. App.3d 908, 748 N.E.2d 811-12.
B. A procedure for conducting telephonic meetings
With Illinois law clear that members of public bodies may participate in public meetings by telephone,1 the question then becomes how to accommodate members of a public body who cannot be physically present yet still wish to fulfill their public duty and participate in a meeting. One example is the Village of River Forest, which adopted an ordinance allowing telephonic participation and setting forth rules specifying how such telephonic meetings are to be conducted. The ordinance provides simply that the "village board may provide for the conduct of its meetings via electronic means..." Code of the Village of River Forest, 1-06-4 H. The ordinance also prohibited meetings via electronic means until rules governing those meetings were adopted.
Those rules allow a member of the village board to participate by telephone in a regular or special meeting of the board or in a meeting as a committee of the whole. The River Forest rules require a quorum be present in the meeting room so that the absent member cannot complete a quorum by participating over the telephone; this requirement applies for all meetings, including public hearings required by State statutes. The rules allow for any such member to participate fully in the discussion and vote on any matter presented. However, the rules also specifically state that the presiding officer at the meeting must be physically present in the meeting room. Thus, if the president or committee chair participates by telephone, there would need to be a presiding officer pro tem in attendance in the meeting room who would conduct the meeting. To avoid any other Open Meetings Act problems, the rules prohibit more than two board members to participate by telephone from the same location. In addition, the rules require a roll call on all votes if one or more members of the board participates in the meeting by telephone.
The rules require, where possible, two business days notice from a village board member who wishes to participate by telephone so that the public notice of the meeting can identify the members who will be participating by telephone. If the two-day notice is not possible, the presiding officer is required to announce at the beginning of the meeting that one or more members will be participating by telephone and the reason for that participation.
In practical terms, telephonic participation requires a speakerphone so that all members of the board and all members of the public in attendance can hear the individual participating by telephone and so that the member can hear the proceedings in the meeting room. The River Forest rules also require any trustee participating by telephone to identify himself and be recognized by the presiding officer before speaking.
These rules fulfill the purpose of the Act, which is "to ensure that actions of public bodies be taken openly and that their deliberations be conducted openly." 5 ILCS 120/1.
C. E-mail meetings
There are no Illinois cases yet that address whether a member of a public body may participate in a public meeting via computer hookup or via the Internet. With advances in technology being what they are, that day may not be too far down the road when such participation may be technically possible. However, consideration of any such arrangement for computer or Internet participation in a public meeting logically raises several concerns about compliance with the Open Meetings Act. At a minimum, such computer-generated participation would require the transmission of a real-time transcript to the remote participant as well as the capability for all members of the public in attendance as well as each public body member to view the written transcript and written comments of the remote member. Cost rather than technology may ultimately determine whether such computer participation is feasible.
There are no Illinois cases deciding whether an exchange of e-mails can constitute a meeting and violate the Open Meetings Act. Although the law from other states is not always clear as to whether an exchange of e-mails may constitute a meeting in violation of the various open meetings statutes, the analysis of available court decisions presented in the second part of this article provides some guidance to the emerging problems created by this popular mode of communication among public officials. Two cases are worth noting here, however.
In Washington State, where State statute defines a meeting as "meetings at which action is taken," (RCW 42.30.020(4)), the appellate court found that an exchange of e-mails among a quorum of members created a triable issue of fact as to whether the board of a school district violated the Open Public Meetings Act. Wood v. Battle Ground School District, 107 Wash. App. 550, 27 P.3d 1208 (Div. 2 2001).
The Alaska Supreme Court has taken what appears to be a contrary view, although Alaska's statute is worded differently than Washington's statute. Without describing the nature or content of the e-mail communications, the Alaska Supreme Court held the superior court properly concluded that even if the exchange of e-mails violated Alaska's Open Meetings Act, plaintiffs were not entitled to any remedy. Therefore, the Alaska Supreme Court declined to decide whether the undescribed e-mail exchanges violated the Open Meetings Act. In re 2001 Redistricting Cases, 44 P.3d 141 (2002).
As these cases and those discussed below suggest, members of local government boards and committees of local government entities should exercise caution in using e-mail to communicate about their public business.
Part II: E-mail communication among public officials: Risks and strategies
By Sharon L. Eiseman, Arlington Heights
A. Questions public officials must ask about using e-mail
E-mail as a form of electronic communication has become wildly popular and is increasingly more common as more people acquire computers and the appropriate skills to use this resource. The burning questions that now face government officials who serve on public governing boards, or councils, or on commissions or committees of public bodies, are whether their e-mail messages to and from one another belong to them or to the public, and whether they are acting illegally, in violation of the Open Meetings Act, by communicating via e-mail with one another about public business without providing the required notice of a "meeting" in accordance with the provisions of the Act.
The first section of this article focused on meetings conducted by telephonic means, and briefly discussed the concerns created by e-mail communication; this section explores in greater depth those issues related to the use of e-mail by public officials and the consequences of that use. This section also proposes answers that may prove helpful until the Illinois courts rule definitively or provide some guidance on the matter, or, in the absence of litigation, until the General Assembly sets standards by which we can measure such actions.
The following questions are the ones most commonly raised by public officials:
(1) When and under what circumstances may members of public bodies covered by the Open Meetings Act2 communicate with each other and/or their administrations through e-mail or in a "chat room" regarding public business without violating the Open Meetings Act (OMA)?
(2) When public officials communicate with each other or with the administration via e-mail, do the messages become public documents subject to Freedom of Information Act (FOIA) requests? If so, must they be stored and for how long?
(3) If the public officials composing the public body communicate via a "chat room," is that a meeting subject to the notice and other requirements of the OMA?
As further explained below, members of local government entities and other public bodies that are subject to the OMA and FOIA should either avoid the use of e-mail communications to advance the business of the public body or take strong precautions when communicating via e-mail. However, if the head of the public body and its members wish to communicate among themselves by e-mail, or perhaps through a chat room, and to allow public access to those messages in accordance with the law, the requirements of the Open Meetings Act should be observed.
Although no Illinois court has addressed the issue of electronic communications directly, it is clear that any discussions or deliberations involving a majority of a quorum of the public body and relating to public business are subject to the OMA, even if those activities are not conducted in an official meeting room. In addition, those communications that are related to a public official's position and public duties and that are appropriate for preservation should be treated as public records under the FOIA which must be maintained by the state or local government entity and released to the public upon request, unless exempted by the FOIA.
B. E-mail communications and the Illinois Open Meetings Act; the law in other jurisdictions
(1) The State of the Law in Illinois
The Illinois Open Meetings Act, 5 ILCS 120/1 et seq., declares as the public policy of the State that "actions of public bodies be taken openly and that their deliberations be conducted openly." 5 ILCS 120/1. The OMA requires that all meetings of public bodies be open to the public unless a specific exception applies, in which case the meeting may be closed pursuant to specifically enumerated procedures. 5 ILCS 120/2.
The OMA does not mention electronic communication specifically. Rather, it defines "meeting" as "any gathering of a majority of a quorum of the members of a public body held for the purpose of discussing public business." 5 ILCS 120/1.02. We must, therefore, look to judicial and administrative rulings in specific cases for guidance as to the applicability of the Act to e-mail communications and to the meaning of "gathering." Illinois courts and the office of the Illinois Attorney General have issued opinions exploring and clarifying the definition of "meeting," yet those opinions have not addressed the specific issue raised here: whether e-mail communication between and among members of a public body discussing public business constitutes a "meeting" under the Act.
The OMA states and judicial decisions within Illinois concur that when a majority of a quorum of a public body discusses or makes decisions regarding public business, a "meeting" takes place for purposes of the Act. In certain cases challenging the actions of public officials who get together without declaring a meeting, and in questions posed to the Illinois Attorney General as to whether particular activities violate the Act, the emphasis is on whether those individuals constitute a quorum that is "gathered" to conduct public business. Recently, the Illinois Attorney General issued an opinion finding that an "informational" meeting attended by two county boards constituted a "meeting" under the Act because deliberation, questions, answers and statements--in short, discussion--regarding public business took place at the meeting, even though no action was taken. Ill. Att'y Gen. Op. No. 95-004, issued July 10, 1995, 1995 WL 441614 (Ill.A.G.). In that opinion, the Attorney General also pointed out that not every gathering of the relevant number officials constitutes a meeting that triggers application of the Act, one such example being attendance at a presentation on new legislative developments.
Another issue to be considered is whether a "gathering" can occur under the OMA even if a quorum is not physically present at a single location. Years ago, the Illinois Attorney General determined that a telephone conference of a majority of a quorum of a public body may constitute a "meeting" satisfying the requirements of the Act. 1982 Ill. Att'y. Gen. Op. 124. As noted in the first part of this article, the Illinois Appellate Court reached the same conclusion in 1995, finding in favor of a State agency that "members of an administrative agency need not be in each other's physical presence to constitute a quorum." Freedom Oil Co. v. Illinois Pollution Control Board, 655 N.E.2d 1184, 1190 (4th Dist. 1995). In that case, the court upheld an amended order issued by the Illinois Pollution Control Board during an official meeting attended by two Board members physically present at the noticed meeting site and four other members who participated in the meeting by "telephonic connection." See also People ex rel. Graf. v. Village of Lake Bluff, 748 N.E.2d 801 (2nd Dist., 2001), affirming the Freedom Oil Co. opinion that the Act does not prohibit a public body from conducting a meeting by telephone conference call. Graf also concluded that the public has no inherent right to participate in a public meeting that would be thwarted by a public body's allowance of telephone conferencing, a decision also in keeping with Scott v. Illinois State Police Merit Board, 584 NE2d 199 (1st Dist. 1991), which upheld the validity of the Merit Board's discussion of an officer's discipline at a noticed closed meeting conducted by prearranged telecommunications conference.
(2) How other states view e-mail communications
Although Illinois authorities have considered instances of communication by teleconference, the impact of e-mail communications has not yet been addressed in this State. However, the Attorneys General of several other states have tackled the issue, and court opinions have emerged from a few states in the past two years.
Kansas and "serial" communications
The Kansas Attorney General, interpreting the Kansas Open Meetings Act (which defines "meeting" to include "telephone call or any other means of interactive communication . . . ."), maintained that if three or more board members simultaneously engaged in discussion of board business through computer terminals, they could be in violation of that State's open meetings law. Simply sending a message to which other board members did not respond immediately would not be "interactive communication," however, and would not constitute a "meeting." Kan. Op. Att'y. Gen. Op. No. 95-13, issued January 23, 1995, 1995 WL 40761 (Kan.A.G.).
The Kansas Attorney General subsequently found that "serial" communications, in which information is passed (via e-mail, fax, or some other means) from one board member to another until a consensus is reached on a common topic of discussion, would constitute a "meeting" if the communications collectively involved a majority of a quorum. Interestingly, the opinion observes that "real time" is not a necessary condition for interactive communication to constitute a meeting under Kansas law. Especially pertinent to recent questions raised by many elected and appointed public officials who serve on public bodies is the Kansas Attorney General's citation of a North Dakota Attorney General opinion which states that:
"[T]here is a threshold at which multiple conversations (in person or over the telephone) on a particular subject, each involving two or three Board members, collectively involve enough Board members (a quorum) that the conversations have the potential effect of forming consensus or furthering the Board's decision-making process on that subject. At the point the conversations on a particular subject collectively involve a quorum of the Board, the 'quorum rule' is satisfied and the topic of discussion must be considered." Kan. Att'y. Gen. Op. No. 98-26, issued April 20, 1998,1998 WL 190416 (Kan.A.G.).
One can appreciate how easy it is for a law enforcement agency or a court to apply this same analysis to e-mail communications.