On August 17, 2007, Governor Rod Blagojevich signed Public Act 95-245 (HB 1670) into law, effective immediately. P.A. 95-245 makes two changes to Section 1.02 of the Illinois Open Meetings Act (5 ILCS 120/1.02) and also amends a provision of the Illinois Municipal Code concerning the commencement of terms of elected municipal officers. This legislation was endorsed without much opposition, as it was the product of negotiations between the Illinois Municipal League and the Illinois Press Association. It was also uniformly accepted by legislators; at no point in the legislative history of this bill did a member of the Illinois General Assembly cast a vote against this measure.
Prior to this legislation, Section 1.02 of the Open Meetings Act defined a “meeting” as “any gathering” held by “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) (emphasis added) This is still the legal definition for a “meeting” under the Open Meetings Act for all public bodies except those with five-member boards. P.A. 95-245 changes the definition of “meeting” for five-member boards to “a quorum of the members of a public body held for the purpose of discussing public business.” (emphasis added).
The new legislation explicitly states that three members of a five-member public body constitute a quorum, while a majority of a quorum of a five-member board is only two members. This alteration to the definition of a “meeting” under Section 1.02 of the Open Meetings Act means that two members of a five-member public body can communicate outside of a public meeting without participating in an illegal “meeting” (which would have violated the Act).
Notwithstanding the new legislative change, public officials serving on five-member boards must still remain circumspect in their discussion of public business with fellow board members. Further, care must continue to be taken that communications between more than two of the five members of a board on an item of public business does not occur. This legislative change should not be read as granting permission to public bodies to deliberate on the people’s business outside of public meetings.
The second major change brought about by P.A. 95-245 is that “the affirmative vote of 3 members is necessary to adopt any motion, resolution, or ordinance, unless a greater number is otherwise required.” (5 ILCS 120/1.02) This is the tradeoff for the relaxation of the Open Meetings Act. Two of five members can discuss public business without technically creating an illegal “meeting” under the Open Meetings Act, but it now requires three of five members to pass any motion, resolution or ordinance. In the past, two votes could carry a vote on a five-member board if only three of the five members attended the meeting. In such a scenario today, all three members attending must vote in favor of the motion, resolution or ordinance for it to pass.
As a result of this amendment, public bodies may wish to take steps to ensure that a full complement of its members are present at board meetings if potentially divisive or controversial issues are to be addressed at the meetings. This is primarily because this language would seem to run contrary to the common law view that abstentions are to be treated as votes with the majority. The amendments to P.A. 95-245 indicate that votes will fail without the “affirmative vote” of three of the five members and an abstention does not qualify as an “affirmative vote” under the statute as revised.
The changes to the Open Meetings Act in P.A. 95-245 impact only five-member boards including fire and police pension boards, certain park district boards, certain fire protection district boards, and other special district boards. Three-member or seven-member boards are not affected by these changes to the Open Meetings Act.
Note, however, that municipalities are impacted by the change to Section 3.1-10-15 of the Municipal Code which calls for the terms of elected municipal officers to commence “at the first regular or special meeting of the corporate authorities after receipt of the official election results from the county clerk.” (65 ILCS 5/3.1-10-15) This provision formerly read that the new elected officers began their terms at the first regular or special meeting during the month of May following the proclamation of the results of the election. This change was presumably proposed to allow terms of office to coincide with recent changes to the Election Code for absentee and provisional voting which allow for 21 days for county clerks to certify election results.
Issues regarding the statutory construction of P.A. 95-245 and its applicability to specific fact patterns will remain. We invite your questions on P.A. 95-245 and its impact on the public business of our governmental clients.
