CBA Record May-June 2020

Suspension of the Open Meetings Act During the Covid-19 Emergency By Peter Friedman, JeffreyMonteleone, andBenjaminSchuster O n March 13, 2020, Governor Pritzker issued Executive Order 2020-07 pursuant to the Illinois nullification of the acts of a public body under present circumstances is virtually non-existent.

Emergency Management Act ( IEMA ). The Order suspended the procedural require- ment in the Illinois Open Meetings Act ( OMA ) that a quorum of a public body be physically present to conduct a public meeting and removed the limits on when remote participation in a public meeting is permitted. The governor reissued the Order on April 30, 2020 pursuant to Executive Order 2020-33, extending his suspension of the OMA requirements until May 29. In the face of the public health hazards posed by the Covid-19 pandemic, the logic and legal justification of the Gov- ernor’s Order is clear. In reliance on the Executive Orders, thousands of public bodies throughout Illinois have conducted public meetings and public hearings by telephone or web conferencing technologies to avoid putting elected officials, staff, and the public at risk of contracting Covid-19. In doing so, these public bodies have maintained essential government operations and decision- making capabilities, while adhering to the social distancing requirements and other public health imperatives set forth in the Governor’s March 20 and April 30 Stay- at-Home Executive Orders. Some attorneys and advocacy groups have questioned the governor’s authority to suspend the OMA’s physical presence requirement, claiming that the IEMA does not grant the governor the power to suspend any part of the OMA, and contending that the OMA suspension is an unconstitutional executive overreach. They also claim that Illinois courts may void final action taken by a public body at a virtual public meeting held in reliance on the Executive Orders. It is our opinion that these positions are not well-grounded in fact or law. The governor’s limited suspen- sion of a procedural OMA requirement is clearly authorized, and the risk of judicial

Authority to Suspend Physical Presence Requirement

Recognizing the need for swift action in the face of man-made and natural disasters, the General Assembly adopted the IEMA, in part, to confer upon the governor several extraordinary powers. One of the powers is, upon the issuance of a disaster declaration: To suspend the provisions of any regula- tory statute prescribing procedures for conduct of State business , or the orders, rules and regulations of any State agency, if strict compliance with the provisions of any statute, order, rule, or regulation would in any way pre- vent, hinder or delay necessary action, including emergency purchases, by the Illinois Emergency Management Agency, in coping with the disaster. 20 ILCS 3305/7 (emphasis added). Those who question the governor’s OMA suspension focus on the IEMA lan- guage above authorizing the governor to suspend the “orders, rules and regulations of any state agency .” They posit that the governor exceeded his authority because local bodies such as cities and villages cannot be categorized as “State agencies.” In doing so they ignore the governor’s explicit authority to “suspend the provi- sions of any regulatory statute prescribing procedures for conduct of State business ,” which is far broader, and gives the governor the authority to suspend OMA’s physical presence procedural requirement as it applies to all public bodies in the state. Business of Local Public Bodies as State Business Given the fundamental nature of Illinois local governments and their relationship under the Illinois Constitution to the state government, OMA procedures that apply to public meetings are state business. The

Photo Credit: Justice Michael B. Hyman

drafters of the Illinois Constitution did not divide the sovereign powers of the state into a two-part system of (i) state government and (ii) local governments. Rather, the drafters entrusted the complete sovereign power to the state. Municipal corporations have no inherent powers and are wholly subordinate to the state government. Arlington Heights v. County of Cook , 133 Ill. App. 2d 673, 675 (1st Dist. 1971); People ex rel. Mortell v. Bergman , 253 Ill. 469 (1912). “Municipal corpora- tions are creatures of the state that are, absent constitutional restrictions, subject to the legislature’s will and discretion.” JR Investments, Inc. v. Barrington Hills , 355 Ill. App.3d 661, 667 (2d Dist. 2005). Even home rule units are not sovereign govern- ments: home rule powers extend only to matters of local concern and only to the extent that the State has not preempted the exercise of such power. See Ill. Const. 1970, art. VII, sec. 6. Further, the General Assembly has expressly declared in the text of the OMA that local governments undertake state business. The first sentence of the OMA declares: “[i]t is the public policy of this State that public bodies exist to aid in the conduct of the people’s business […]” 5 ILCS 120/1 (emphasis added). Section 1 of the OMA also provides that “[t]he General

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