A state appeals panel has determined the Chicago City Council may have violated state law by conducting a telephone meeting during the spring of 2020 without providing public notice.
The Better Government Association sued the city in June 2020, a 12-count complaint alleging three improper meetings on March 30, April 6 and May 31 of that year. The BGA alleged the city gave no notice of the meetings, provided no means for public attendance and didn’t follow Open Meetings Act protocol for closed sessions.
The BGA wanted the court to order release of written minutes and all recordings, although audio from the May 31 session had already been made public. The city moved to dismiss the complaint, arguing none of the conferences counted as meetings under the Open Meetings Act and further contending the March 30 and April 6 sessions couldn’t be litigated because the law requires suit to be filed within 60 days of the allegedly illegal meetings being revealed.
BGA countered by insisting both common law discovery and fraudulent concealment exceptions applied to the alleged violations and said the May 31 recording was leaked, not officially released, meaning its push for an injunction remained appropriate, especially regarding the intent to prevent future “secret meetings.”
In June 2021, Cook County Circuit Court Judge Caroline Moreland granted the city’s motion to dismiss with prejudice, agreeing the claims were time barred and moot, but would not agree with the city’s position the conferences didn’t qualify as “meetings” under the Open Meetings Act.
Illinois First District Appellate Justice Mary Ellen Coghlan wrote the panel’s decision on the BGA’s appeal, issued Jan. 30. Justice Michael Hyman concurred; Justice Aurelia Pucinski wrote a special concurrence. The order was issued under Supreme Court Rule 23, which may limit its use as precedent.
The panel agreed with Judge Moreland regarding the first two meetings, which happened 67 and 74 days before the BGA filed its complaint. It also said the record shows the BGA knew about the meetings in time to file its lawsuit, negating the two exceptions it attempted to invoke.
“Not only had the 60 days expired, but BGA also alleges that the March 30 and April 6 meetings were ‘disclosed to the public’ on April 21, 2020, well within the 60 days,” Coghlan wrote. “BGA knew of the occurrence and could have filed its complaint timely.”
However, the panel continued, Judge Moreland shouldn’t have dismissed as moot the complaints regarding the May 31 meeting. The suit was timely, the panel said, and Moreland “failed to address the requested written minutes and recordings.”
Coghlan explained the city acknowledged the audio of that meeting, released June 6, was leaked “and insufficient for the city to meet its obligations” under the Open Meetings Act. “Only a release of the audio recording and minutes by the city can comply.”
The panel remanded that portion of the complaint for further proceedings.
In her special concurrence, Pucinski addressed the Open Meetings Act and the role of leaks, which she branded as “inherently problematic: they cannot be forced to be timely, since that is the very nature of leaks. They cannot be said to be entirely accurate, since that, too, is the nature of leaks and some ‘leakers’ may have personal or political motives for leaking the fact of the secret meeting.”
Further, she said some prosecutors might simply pass on challenging Open Meetings Act violations, even with the extra 60 days the law affords a state’s attorney office, whether for potential “personal and political considerations” or staffing issues.
“The purpose of the OMA is to let the public know what its elected officials are up to: a notice of the meeting, an agenda, public access, public questions, minutes, recordings, where required, are all part and parcel of the foundation of our most quoted maxim: ‘of the people, for the people, and by the people,’ ” Pucinski wrote.
At oral arguments, the city said each phone call had a quorum of council members to discuss public safety in the early days of the Covid-19 pandemic, as well as a response to the unrest that followed the murder of George Floyd in Minneapolis, Pucinski said. But the council refused to acknowledge the calls were meetings.
Pucinski called on lawmakers to revisit the Open Meetings Act, to correct some of the perceived shortcomings exposed by the City Council's actions in 2020.
“The spirit and the letter of the OMA would, I think, invite the Legislature to take a hard look at how the OMA does and does not work and to revisit the matter,” she concluded.