Questions and Answers on Library Law:
The Open Meetings Act, Part I

This column appears regularly in Illinois Libraries and addresses commonly asked questions on library law. If you have questions you would like addressed in this column, please send them to: "Q and A on Library Law," Illinois Libraries, at the address on the title page of this issue. While we are not necessarily able to answer all questions, we will try to address those issues that are of most concern to the greatest number of libraries. The first three columns in this series addressed the basic concepts of the Freedom of Information Act. This column begins a discussion of the Open Meetings Act.

Q: Why does Illinois have an Open Meetings Act?

A: Illinois has not always had an Open Meetings Act. The present Act was adopted in 1957, and has been substantially revised several times since then. The Act was initially adopted because it was felt that too many governmental bodies were transacting public business, like private corporations. In the very first paragraph of the Act, the legislature clearly states that the public policy of the State of Illinois is that public commissions, committees, boards and councils exist "...to aid in the conduct of the people's business." The expressed intent of the Act is that the actions of public bodies "be taken openly and that their deliberations be conducted openly." The Act goes on to indicate that it is public policy of the state that the people be given advance notice of meetings of public bodies and of their right to attend.

Due to the limited exceptions to the Act, there are occasions when matters must be discussed in public, which common sense or logic would suggest might be more properly reserved to a closed session. Nevertheless, in an attempt to correct perceived abuses of even the limited number of closed session exceptions, the Illinois legislature further amended the section of the Act that requires that meetings of public bodies shall be open to state as follows:

"No final action may be taken at a closed meeting. Final action shall be preceded by a public recital of the nature of the matter being considered and other information that would inform the public of the business being conducted."

Q: How many board members must be present for a gathering to be a "meeting" under the Act?

A: A meeting is defined as "...any gathering of a majority of a quorum of the members of a public body held for the purpose of discussing public business."

What constitutes a majority of a quorum for a particular public body can be easily determined. A quorum, unless otherwise defined in bylaws or other rules, is generally one-half the membership rounded to the next higher whole number. Thus a quorum of a seven-member board is four, and a quorum of a six-member is also four. A quorum of a nine-member board is five.

The same principal governs finding a majority of a quorum. For a seven-member board with a quorum of four, a majority of the quorum is three. A majority of a quorum of a nine-member board is also three.

Q: Are all gatherings of a majority of a quorum of our library board covered by the Act?

A: The second part of the definition of a "meeting" requires that the gathering of a majority of a quorum be held for the purpose of discussing public business. In other words, there must be an intent to discuss public business before the gathering will be held to be a meeting covered by the Act. The legislature added this intent language so that public officials would not have to fear violating the Act if they unintentionally discussed public business with some or all of the other

* Scott Uhler and Janet Petsche, are partners, and Rinda Allison is an associate with the law firm of Klein, Thorpe and Jenkins, Ltd., with offices in downtown Chicago and Orland Park. The firm concentrates in the representation of public libraries and library districts in Illinois as well as other local government units.

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members of a public body at a social event. At least one court has further indicated that the discussion of public business is to be preliminary to or in furtherance of some decision or conclusion on the matter being discussed, in order for such discussion to qualify as a meeting under the Act. See, Nabhani v. Coglianese, 555 F.Supp.657 (N.D.Ill1982). However, whether a discussion of public business by some or all of the members of a public body at a social event (dance, dinner, party, etc.) is now covered by the Act, still depends upon the particular facts involved, as discussed below.

Q: What about a picnic, holiday party or other purely social gathering?

A: If a majority of a quorum of a public body is present at a social gathering and if they intended to gather there to discuss public business, or if the purpose of attending this social event is to discuss public business, and they actually gather together and discuss public business, the social gathering is covered by the Act. If such a gathering was not open to the public and held pursuant to all of the requirements of the Act, including notice, the public officials involved may be guilty of a violation of the Act. It is not necessary that public officials meet at their official meeting place in order to have a meeting under the Act. Also, if public officials were to gather together at a social event with the intent of evading the Act, they would be in violation of the Act.

On the other hand, if at least a majority of a quorum of a public body comes together at a social event with no intent to evade the Act and not for the purpose or with the intent of discussing public business, a casual, chance or informal discussion of public business by such members of a public body should not be considered a meeting within the purview of the Act. After all, it is only natural for people with a common interest to discuss it when they are together. However, we caution you that the Illinois Attorney General in his written explanations of the Act has stated that:

"...although a gathering may not be held for the purpose of discussing public business at the outset, the gathering is subject to conversion to a meeting at any point. Thus, for example, at the point that a dinner party turns to a discussion of public business upon which the attention of the requisite number of public body members present is focused, the gathering becomes a 'meeting' for purposes of the Act."

This statement by the Attorney General ignores the clear "intent" language of the Act, however, at least until such time as this new definition is interpreted by the courts, prudent library board members would be well advised to limit their discussions of library business at social events.

Q: Are telephone conference calls considered meetings?

A: We normally conceive of a gathering as a physical coming together of persons in a group. See WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 940 (1981 ed.). However, it is also evident that, with the technology presently available, a group of persons may come together by noncorporeal means as well. One would have to ignore the common practices of modern government to exclude the telephone conference call as a means by which public officials "gather" to conduct public business. This raises two questions. First, can a telephone conference call be considered a meeting such that the requirements of the Open Meeting Act must be met? Second, would action taken by a body as part of such a "meeting" be valid?

The Illinois Attorney General has indicated in an opinion that telephone conferences involving a majority of a quorum of a public body are meetings within the Act. Op. Atty. Gen. (Ill.) No. 82-041. Thus, if three members of a seven-member library board participate in a telephone conference call on library business (perhaps reviewing together the agenda for a coming meeting), they are in violation of the Act unless proper notice of the conference call was given and provision was made for the public to be present (perhaps listening by speaker phone at one of the locations). Note that two members of the board, or two members of the board and the head librarian, do not violate the Act by a telephone conference call.

In answer to the second question, the Fourth District Appellate Court has held that an Illinois Pollution Control Board meeting, where two members were present at a meeting site and four other were connected by telephone, was a valid meeting under the Open Meetings Act. Freedom Oil Co.v. Illinois Pollution Control Board, 275 Ill.App.3d 508, 655 N.E. 2d 1184, 211 Ill. Dec. 801 (4th Dist. 1995). The meeting was properly noticed, the conference call was broadcast by a speaker phone at the Pollution Control Board headquarters, and minutes were kept of the meeting. The court held that the actions taken at the meeting were valid.

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The reach of the Freedom Oil decision has not been explored by other courts, so it is not yet clear what all its implications are for libraries. However, library boards may want to discuss with their attorney the adoption of rules of their own, at a minimum consistent with Freedom Oil regarding telephone conferences and board member participation in formal meetings by telephone.

Q: Does the Act only cover the library board's regular meetings?

A: The Act covers any meeting of the library board, whether regular or special, as well as meetings as a committee of the whole or workshops. Further, both the library board and its duly authorized subcommittees and appointed commissions are subject to the Act.

Q: Does the Act cover library staff meetings?

A: The Act does not apply to meetings or conferences of department heads, staff or employees. A court has held that such meetings or conferences are not covered by the Act because the participants do not adopt any resolutions and meet only for the purpose of promoting "good staff work." A library board member may attend such a staff meeting without bringing it within the coverage of the Act. However, if a majority of a quorum of the board attend such a staff meeting at which public business is discussed, the meeting would then come within the Act and would have to have been properly noticed and open to the public.

Our next column will address additional questions arising under the Open Meetings Act.

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