A few days before the Thanksgiving holiday, the Public Access Counselor (PAC) issued its seventh binding opinion (PAC Opinion No. 20-007) in 2020 regarding the conduct of remote public meetings during a public health emergency. The PAC found that a village board was in violation of the Illinois Open Meetings Act, 5 ILCS 120/1 et seq. (the “OMA”), because it muted a discussion of public business during its remotely held public meeting on September 8, 2020.

At the September 8, 2020 meeting, the village muted the Zoom livestream for approximately sixty (60) seconds during a conversation between the village mayor and village clerk. The sixty (60) second discussion was about whether a personnel matter needed to be discussed in open session or closed session. Rather than hold the sidebar outside of the livestream, the village mayor requested that the audio for the Zoom meeting be shut off during this sixty (60) second discussion.

Under Section 7(e)(4) of the OMA, one of the conditions that a public body must satisfy to hold a remote meeting without the physical presence of a quorum of its members is to ensure that arrangements are made “in a manner to 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 web-based link” [emphasis added] 5 ILCS 120/7(e)(4). The PAC found that even though the muted discussion between the mayor and village clerk was brief and limited to clarifying a procedural issue, it still violated Section 7(e)(4) because all members of the public were not able to contemporaneously hear the sixty (60) second open session discussion. The PAC went on to explain that although no provision of the OMA prohibits board members from having a brief, inaudible exchange during an in-person meeting, Section 7(e)(4) does not provide an exception for a “sidebar” discussion of public business between village officials during a remote meeting. Therefore, because all members of the public could not contemporaneously hear the muted discussion, the PAC determined that the village board was in violation of Section 7(e)(4) of the OMA because it muted a “sidebar” discussion of public business that should have been audible to the public.

The takeaway from this recent PAC opinion is that boards (whether village, park district, school district, library district, etc.) need to make sure that they carefully follow all of the conditions of Section 7(e) of the OMA when holding remote public meetings. If you have any questions regarding this recent PAC opinion or the OMA, please contact your Tressler attorney.