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

Scott Uhler, Janet Petsche and Rinda Allison

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 which seem to be of most concern to the greatest number of libraries. Our last two columns have addressed the Open Meetings Act; this column completes our discussion on this important subject.

Q: What notice does the Act require for library board meetings?

A: The Act specifies a number of types of required notice, 5 ILCS 120/2.02(a):

1. At the beginning of each calendar or fiscal year, the library board must give public notice of the schedule of its regular meetings and must state the regular dates, times and places of these meetings. In addition, an agenda of each regular meeting must be prepared and posted at least 48 hours in advance of the meeting. It must be posted at the library and at the location at which the meetings are held, if that is not the library. However, the posted agenda does not preclude the consideration of items not specifically set forth in the posted agenda.

2. Public notice of special meetings, except a meeting held in the event of a bona fide emergency, must be given at least 48 hours before such special meeting, and the notice must also include the agenda for the special meeting.

3. Notice of an emergency meeting must be given as soon as practicable, but in any event prior to holding of the meeting, to any news medium which has filed an annual request for notice under the provisions of the Act. For example, library were to be hit by a tornado or flash flood, the board would not have to wait 48 hours before meeting in order to post notice of a special meeting, but could notify the news media and meet immediately in order to decide upon a course of action then give notice as soon as practicable to the public. Of course, the same restrictions and exceptions apply to such emergency meetings being open or closed.

4. Public Notice of a rescheduled regular meeting or of a reconvened meeting must be given at least 48 hours beforehand, and the notice must also include the agenda for the rescheduled or reconvened meeting. However, such 48-hour notice of a reconvened meeting is not necessary where the original meeting was open to the public and it is to be reconvened within 24 hours, or an announcement of the time and place of the reconvened meeting was made at the original meeting and there is no change in the agenda. It is suggested that the minutes of the original meeting show the action taken, adjourning to a definite date, time and place.

Q: How is notice given?

A: Public notice is accomplished by posting a copy of the notice at the library and at the meeting location if meetings are held elsewhere. The library must supply copies of the notices of all of its meetings to any news medium that has filed an annual request for such service. In addition, any news medium must be given the same notice of all special, emergency, rescheduled and reconvened meetings in the same manner as is given to members of the library board, provided the news medium has given the public body an address or telephone number within the library's boundaries at which such notice may be given. 5 ILCS 120/2.02(b).

* 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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Q: What if there is a change after notice has been given?

A: If the library board makes a change in its regular meeting dates (for example, a change from the first Monday to the third Wednesday), it must give at least 10 days' notice of such change by publishing a notice in a newspaper of general circulation in the library's boundaries. Notice must also be posted at the place of the meetings and supplied to news media which have filed annual requests. Other changes must meet the requirements of the original notice.

Q; Does the Act place any requirements on where or when meetings may be held?

A: Yes. The Act requires that all public meetings be held at times and places which are convenient and open to the public. 5 ILCS 120/2.01. This means that a meeting may not be scheduled for midnight or 5:00 A.M., and may not be held inside a building which is locked or otherwise inaccessible to the public. Of course, if a meeting has been called at a convenient time, say 8:00 P.M., and extends until midnight, it will still be a proper and legal meeting. When considering meeting locations, the library board should also remember the requirements of the Americans with Disabilities Act and schedule its meetings at locations accessible to disabled persons.

In addition, no meeting is to be held on a "legal holiday" unless the regular meeting day falls on such a holiday. 5 ILCS 120/2.01. The library cannot schedule a special meeting to take place on Christmas Day, New Year's Day, Thanksgiving or any other legal holiday. A special meeting on such a legal holiday would not be convenient to the public. However, if a public body regularly meets, for example on the first Monday of the month, and one of the legal holidays falls on such a Monday, the public body may meet on such holiday, provided, of course, that a quorum of its members is present.

Q: Does the Act require that the public be permitted to participate in library board meetings?

A: No. Although many boards designate a time on the agenda at which public comment may be made, or take public comment on agenda items as they arise, the Act does not require this. The Act requires that the public be able to hear what the board is doing, not that the board be obliged to hear what the public is thinking. Allowing public participation is a political decision to be made by the board.

Q: What about audio or video recording of meetings?

A: The Act requires that any person may record the proceedings of any public meeting by tape, film or other means. 5 ILCS 120/2.05. However, the board may prescribe reasonable rules governing this right. For instance, recording should not interfere with the public's view of the board, or its access to the board room, or use bright lights which affect the vision of board members.

Q: What requirements does the Act place on minutes of meetings?

A: The Act requires all public bodies to keep written minutes of all their meetings, both open and closed, and prescribes minimum requirements for such minutes, 5 ILCS 120/2.06:

1. the date, time and place of the meeting;

2. the members present and absent; and

3. a summary of discussion on all matters proposed, deliberated or decided and a record of any votes taken. (This wording suggests that if only the audience discusses an issue, and the Library Board does not deliberate or decide the issue, no summary of that issue is required.)

The minutes must also contain the vote of each member on a motion to go into closed session and the identification of the specific exception to the Act permitting the closed meeting. 5 ILCS 120/2(a). Simply saying "motion to go into closed meeting" is not sufficient. Moreover, if the closed meeting exception is "probable or imminent litigation" the basis for finding that litigation is probable or imminent should be specified in the minutes. If the meeting is closed to discuss emergency security measures, a description of the actual danger must be included.

Q: How is the Act enforced?

A: Any person, including the State's Attorney, may bring a civil suit within 60 days of an alleged improper meeting. Also, the State's Attorney may bring a suit "within 60 days of the discovery of a violation." 5 ILCS 120/3(a).

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A court may grant a range of relief from requiring that meetings be open to the public, requiring that minutes be made available to the public, awarding attorney's fees to persons who prevail in lawsuits against public bodies, or declaring that any final action taken at a closed meeting is null and void. 5 ILCS 120/3(c) and (d).While all of these are important results, the power to declare an action null and void is very serious indeed, and could result in the invalidity of a tax levy ordinance or a bond issue ordinance. For this reason, library board members must be very careful to follow the requirements of the Open Meetings Act and whenever any doubt about those requirements arises, consult their attorney.

Moreover, a person found guilty of any of the provisions of the Act is guilty of a Class C Misdemeanor. A Class C Misdemeanor is punishable by up to a $500 fine and up to thirty (30) days in prison. Although it is very rare for a court to punish individual officials of a unit of a local government, it has happened.

Our next column will discuss issues arising under the Fair Labor Standards Act.

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