Legislative Update: Remote Meetings and the Open Meetings Act

March 9, 2023

By Marcus E. Martinez

On January 31, 2023, Governor Pritzker announced his expectation that Illinois’ public health emergency would end on May 11, 2023, aligning with President Biden’s announcement to Congress that he intended to end the national emergency and the public health emergency declarations on that date. On February 3, 2023, Governor Pritzker’s announcement was formalized in Executive Order 2023-02 (COVID-19 Executive Order No. 117). Accordingly, local governments can expect that the Governor will issue no further disaster proclamations related to the COVID-19 pandemic after May 11.

Though many communities have returned to in-person public meetings, some have continued to conduct their meetings remotely via audio or visual virtual conference formats pursuant to subsection 7(e) of the Illinois Open Meetings Act (“OMA”). In the absence of a state-level disaster declaration by the Governor or by the Illinois Department of Public Health, public bodies will no longer be able to conduct remote meetings pursuant to subsection 7(e). However, members of public bodies will still be permitted to attend a public meeting remotely pursuant to the pre-pandemic rules set forth in subsections 7(a)-(d) of the OMA. Under these provisions, a member of a public body may attend a public meeting remotely (1) in accordance with the rules adopted by the public body; (2) if a quorum of the members of the public body is physically present; and (3) if the reason that the public official cannot physically attend is because of personal illness or disability, employment purposes, the business of the public body, or a family or other emergency.

On several occasions following the issuance of Governor Pritzker’s first COVID-19 Executive Order on March 12, 2020, Illinois lawmakers proposed a number of bills seeking to amend the OMA to change the way public bodies are allowed to conduct their public meetings remotely. Most have failed. However, there are several new bills pending right now in Springfield.

Senate Bill 1537 (“SB1537”) proposes sweeping changes to the OMA in order to give public bodies a greater ability to conduct their public meetings entirely by remote means. SB1537 would delete the requirement for a gubernatorial disaster declaration for remote public meetings and would require only that the head of a public body make a determination that an in-person meeting is “not in the best interests of the public body or its members.”

SB1537 would also amend the pre-pandemic remote meeting rules. SB1537 would eliminate the requirement that public meetings be held in places convenient and open to the public. Instead, SB1537 provides public bodies the option of conducting a public meeting solely through a website accessible to the public. Also, SB1537 would remove the requirements that a quorum of the public body be physically present at the meeting, or that at least one member of the public body, chief legal counsel, or chief administrative officer be physically present at the public meeting. As of March 9, SB1537 has been assigned to the Subcommittee on Government Operations of the Senate Executive Committee.

Similar in scope to SB1537, Senate Bill 103 (“SB103”) and its companion bill, House Bill 1408 (“HB1408”), propose an amendment to subsection 7(e) to allow a remote public meeting upon a determination by the head of a public body that an in-person meeting would pose a risk to the health or safety of members of the public body or the public and that conducting the meeting remotely is in the best interest of the public body or the public. This would mean that a gubernatorial disaster declaration would be one, but not the only, way for a public body to conduct a meeting remotely. In other words, SB103 and HB1408 would vest the head of a public body with independent discretion to determine that a physical meeting is too risky for the health and safety of the public body members or the public, even in the absence of a disaster declaration.

SB103 and HB1408 also amend the notice requirements for remote meetings by requiring the inclusion in the notice of all information necessary for members of the public to provide public comment or to address the public body in the remote meeting, including phone numbers, web-based links, meeting identification numbers, and passcodes. This is different than the current language of subsection 7(e)(4) of the OMA, which merely requires notice for remote meetings that is sufficient to allow members of the public access to contemporaneously hear all discussion, testimony, and votes at the meeting. As subsection 2.06(g) of the OMA presently requires public bodies to provide members of the public an opportunity to address public officials pursuant to the public body’s rules, the purpose of this proposed amendment may be to conform notice requirements for remote meetings with public comment requirements. SB103 was assigned to the Senate Executive Committee on January 31. HB1408 was assigned to the House Executive Committee on February 15.

Senate Bill 3994 (“SB3994”) also proposes to amend the OMA by allowing a public meeting to be held remotely without a disaster declaration from the governor or the Illinois Department of Public Health, and without a finding by the head of the public body that an in-person meeting is not practical or prudent. Instead, SB3994 would only require a finding by the head of the public body that a remote meeting is in the best interest of the public body. SB3994 also proposes to eliminate the requirement of a verbatim record for the remotely-held meeting, as well as the requirement that all votes be conducted by roll call. SB3994 was referred to the Senate Rules Committee on February 28.

In contrast to bills that would expand remote participation, Senate Bill 1619 (“SB1619”) proposes additional requirements that a public body must meet in order to conduct its public meetings remotely under Section 7(e) of the OMA. Under this bill, public bodies would have to provide a dedicated physical meeting space when conducting a remote meeting to allow participation in the meeting by members of the public who do not have internet access. SB1619 would also require that, in addition to the chief legal counsel or chief administrative officer of the public body, at least one member of the public body be present at the meeting. SB1619 would further require that a public body provide more than an audio-only means of participation in a remote meeting, that the public body ensure that all cameras used for remote participation are working properly, and that the public body maintain a written record of all individuals that participated in the meetings, along with a description of whether those individuals participated in-person or by remote means. SB1619 was assigned to the Senate Executive Committee on February 14.

House Bill 3514 (“HB3514”) is another bill that seeks to add conditions to a public body’s ability to conduct remote meetings. This bill would completely eliminate a public body’s ability to conduct closed session meetings virtually. The bill would require that closed meetings be conducted “only with the physical presence of a quorum of the members of the public body.” The bill is not clear as to whether this would mean that members of the public body participating in open session remotely pursuant to subsections 7(a)-(d) of the OMA would then be barred from participating in closed session. HB3514 was assigned to the House Rules Committee on February 17.

Other pending bills do not take aim at the pandemic rules in Section 7(e), but instead focus solely on the “old” remote meeting rules. For example, House Bill 1066 (“HB1066”) seeks to add childcare obligations to Section 7(a) of the OMA as an acceptable reason for which a member of a public body can participate remotely in a public meeting where a quorum of the public body is physically present. HB1066 was unanimously approved by the House Executive Committee on March 1, and now awaits a vote by the full House of Representatives.

We will continue to track these legislative proposals as the Spring Session progresses. In the meantime, as your local government continues to hold public meetings, please contact any Elrod Friedman attorney with questions on any of these issues.