A SUMMARY OF AMENDMENTS TO
THE OPEN MEETINGS ACT

Prepared by

PATRICK A. LUCANSKY and TERRENCE M. BARNICLE
Of Klein, Thorpe and Jenkins, Ltd., 180 North LaSalle Street, Suite 1600, Chicago, Illinois 60601 (312) 984-6400

As a result of lengthy negotiations between the Illinois Press Association and the Illinois Municipal League's Open Meetings Committee, certain compromise amendments to the Open Meetings Act were passed in the last session of the General Assembly. The following is a brief summary of the amendments to the Open Meetings Act (5 ILCS 120/1 et. seq.) effected by H.B. 1332:

A. Section 1. PUBLIC POLICY.

Section 1 of the Act is amended in its entirety and includes the following statements of public policy:

1. The right of the people to be "informed as to the conduct of their business."

2. The intent of the Act is "to ensure that the actions of public bodies be taken openly and that their deliberations be conducted openly."

3. It is further the public policy of the State that the people be given advance notice of meetings of public bodies and of their right to attend.

4. Exceptions to the people's right to attend such meetings exist only in those limited circumstances where the General Assembly determines:

a. "the public interest would be clearly endangered," or

b. "the personal privacy or guaranteed rights of individuals would be clearly in danger of unwarranted invasion."

In order to implement the above policy, the General Assembly declared:

1. the intent of the Act is to protect the public's right to know; and

2. the provisions (exceptions to open meetings) allowing closed meetings are to be strictly construed against closed meetings.

B. Section 2. OPEN MEETINGS.

As to the construction of the exceptions to open meetings, the amendments provide:

1. Exceptions are to be strictly construed and extend only to subjects "clearly within their scope."

2. The exceptions authorize (allow) but do not require closed meetings to discuss a subject covered by an exception.

I. The following exceptions applicable to cities and villages remain substantially unchanged under H.B. 1332:

1. Collective negotiating matters between the public body and its employees or their representative. (2)

2. Deliberations concerning salary schedules for one or more classes of employees. (2)

3. Pending and probable or imminent litigation. (11)

4. Establishment of reserves or settlement of claims and certain risk management information. (12)

5. Conciliation of complaints of discrimination in the sale or rental of housing — fair housing practices. (13)

II. Those exceptions applicable to cities and villages which are amended by H.B. 1332 include:

1. The appointment, employment and dismissal of employees. Public bodies may also now discuss the compensation, discipline and performance of specific employees in closed sessions. The Act, as amended, continues the exception for closed meetings to hear testimony on a complaint lodged against an employee. However, the amendments deleted "officers" (who are not employees) from the coverage of these exceptions (but see 2 below). (1)

2. The selection of a person to fill a public office, including a vacancy, was clarified to only include public bodies which have the power to appoint and also was expanded to include closed meetings to consider the discipline, performance or removal of the occupant of a public office, when the public body has the power to remove the occupant. (3)

3. The purchase or lease of real property for use of the public body. (5)

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4. Setting of a price for sale or lease of property owned by a public body. (6)

5. Sale or purchase of securities, investments or investment contracts. (7) New as to cities and villages.

6. Emergency security procedures to respond to actual danger to safety of employees, staff or public property. (8) New as to cities and villages.

7. Informant sources, hiring and assignment of undercover personnel or equipment related to criminal investigations. (14)

8. Professional ethics or performance — advisory body appointed to advise a licensing or regulatory agency.(15)

III. The following exceptions applicable to cities and villages were added by H.B. 1332:

1. Evidence or testimony presented to a quasi adjudicative body (e.g. fire and police board, fire and police pension boards) provided the body prepares and makes available for public inspection a written decision and provided that the subject matter was otherwise appropriate (e.g. an employee dismissal) for the closed meeting. (4)

2. Self evaluation, practices and procedures or professional ethics when meeting with a representative of a statewide association of which the public body is a member. (16)

3. Discussion of minutes of closed meetings whether to approve or to review on a semi-annual basis as required by the Act.

IV. The following exceptions applicable to cities and villages were deleted by H.B. 1332:

1. Those required to be closed by the Constitution.

2. A closed meeting when a Federal regulation requires it.

3. Mayor and commissioners of a town with the Commission form of government when meeting to discuss matters related solely to the exercise of their executive or administrative responsibilities.

Finally, a definition of the word "employee" has been added and the definition excludes "an independent contractor." See, Gosnell v. Hogan, 179 Ill.App.3d 161(1989).

C. Section 2a. CLOSED SESSIONS — PROCEDURE.

The vote of each member on the question of holding a closed meeting must be "publicly disclosed at the time of the vote." The location of public meetings must be convenient and open to the public.

D. Section 2.02. PUBLIC NOTICE

An agenda of each regular meeting now must be prepared and posted at least 48 hours in advance of the meeting. It must be posted at the principal office of the public body. However, the posted agenda does not preclude the consideration of items not specifically set forth in the posted agenda. Also, notice of special meetings must also be given at least 48 (rather than 24) hours in advance.

E. Section 2.06. WRITTEN MINUTES OF MEETINGS.

Written minutes must now include "a summary of discussion on all matters proposed, deliberated or decided."

F. Section 3. NONCOMPLIANCE — CIVIL ACTIONS — RELIEF — FEES AND COSTS.

The number of days within which a meeting may be challenged has been increased from 45 days to 60 days.

The Governor signed H.B. 1332 on September 9, 1994, and these amendments become effective January 1, 1995. The Public Act number is 88-621. A copy of H.B. 1332 is available from the Illinois Municipal League.

The Illinois Municipal League will be publishing an updated MANUAL ON ILLINOIS "SUNSHINE LAWS" by Patrick A. Lucansky, J.D. and Terrence M. Barnicle, J.D. in the near future. This updated version will contain all the new statutory changes contained in House Bill 1332, P. A. 88-621 plus current case law.

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