The Illinois Attorney General has concluded that the Board of Education of Jersey Community Unit School District No. 100 did not violate the Open Meetings Act by deciding to hold a regular meeting remotely because of the COVID-19 pandemic. The Board president determined an in-person meeting was not practical or prudent due to the health risks associated with COVID-19, based in large part on the disruption being caused by “anti-mask” attendees refusing to follow safety rules at the meetings, and the determination that it was not practical or prudent was expressly set forth in the Board’s meeting agenda. A resident complained to the Attorney General that the Board’s decision to meet remotely was improper and intended to prevent in-person attendance because the Board had previously met when the rates of COVID infection were higher, contending the Board’s decisions on when to meet remotely were illegal because they were inconsistent and not based on data. The Attorney General found that when a Disaster Proclamation related to public health concerns is in place, the Open Meetings Act exception for remote meetings is satisfied when the determination is made that meeting in-person is not practical or prudent, regardless of the particular COVID-19 case count on the date of a meeting or the fact that the public body had conducted in person meetings when COVID-19 case counts were higher.
A full copy of the Opinion of the Illinois Attorney General is available at:
PUBLIC ACCESS OPINION 21-011 (December 14, 2021)
A more detailed summary of the reasoning and conclusions of the Attorney General is set forth hereinafter.
A resident alleged that the Board of Education improperly held a board meeting remotely, to prevent in-person attendance, without a legitimate reason, when the rates of COVID infection in the community were declining. The agenda posted for the meeting stated that due to the increasing infection in the community, the Board may participate by audio or video conference without the physical presence of a quorum of the members due to the determination that an in-person meeting is not practical or prudent due to the current health emergency.
The resident stated that during the public comment portion of the Board Zoom meeting, she asked why the meeting was held by Zoom. The Board president responded that local officials advised the Board to meet remotely because of the “disruptive” nature of the Board’s previous meeting. The resident complained the Zoom audio was hard to hear and that Zoom did not all persons that cannot afford the internet to participate.
Following recent of the Complaint, the Public Access Counselor (“PAC”) asked the Board of Education for evidence the Board President made the determination for the in-person meeting involved, that it was not practical or prudent to meet in-person due to the conditions of the COVID-19 pandemic.
The PAC asked the Board to address the resident’s allegation that the actual reason for meeting over Zoom was not the pandemic but concerns about order and decorum at the Board meetings and advice received to follow suit with other local public bodies. The school district explained that COVID-19 safety concerns arose from the Board’s previous meeting which was held in person since there were numerous persons at that meeting who refused to wear masks, despite masks being required. Due to the number of individuals anticipated to attend, and because many of those individuals refused to comply with mitigation requirements (including wearing masks) at the prior meeting, an in-person board meeting was likely to become a congregate setting unsafe for those in attendance. In responding to the PAC, the school district indicated that other than the language included on its agenda, and a prior discussion between the Superintendent and Board President, there was no other written determination that it was not practical or prudent to meet in-person.
The PAC also asked for a recording of the prior Board meeting at which the mask refusal occurred, to verify the nature of the asserted disruption. The school district provided a recording of the meeting and a copy of a police report documenting a police response to a call for service at that meeting. The police report stated that “[B]oard members were worried due to a large number of people indicating they wished to protest the school’s mask mandate. ” The police verified there was an unmasked audience member refusing to leave and a larger number of persons at the entrance who were unwilling to wear masks or leave.
The PAC confirmed that in March 2020, pursuant to his authority under the Illinois Emergency Management Agency Act, the Governor “declare[d] all counties in the State of Illinois as a disaster area” in response to the outbreak of COVID-19. The Disaster Proclamation became effective immediately on March 9, 2020, and has been continued since.
At the time of the Board meeting involved, the Governor’s Proclamation, the provisions of the Open Meetings Act, requiring or relating to in-person attendance by members of a public body were no longer suspended. However, by Executive Order there was a mandate requiring “all individuals in Illinois who are age two or over and able to medically tolerate a face covering … to cover their nose and mouth with a face covering when in an indoor public place.”
While the Governor’s Proclamation no longer suspended the requirements for in-person attendance at public meetings when the Board meeting was held by Zoom, the Open Meetings Act had been amended to authorize public bodies to hold remote meetings during the COVID-19 pandemic. The amendment allowed an open or closed meeting to be conducted by audio or video conference, without the physical presence of a quorum of the members, so long as the following conditions are met:
- The Governor or IDPH have issued a public health disaster declaration pursuant to the Illinois Emergency Management Agency Act;
- The head of the public body (as defined in FOIA) determines that an in-person meeting or a meeting conducted under this Act is not practical or prudent because of a disaster;
- Members of the public present at the regular meeting location of the body can hear all discussion and testimony and all votes of the members of the body, unless attendance at the regular meeting location is not feasible due to the disaster, in which case the public body must make alternative arrangements and provide notice pursuant to the Act of such alternative arrangements in a manner to allow any interested member of the public access to contemporaneously hear all discussion, testimony, and roll call votes, such as by offering a telephone number or a web-based link.
The resident argued that the determination of when to meet in-person or remotely, by the Board, did not appear to be consistent based on the community infection rates. She also noted that school was being run in person while the Board of Education was meeting remotely. Finally, she noted that she and other community members had suggested other, safer settings for a meeting, such as the football stadium, which were refused by the Board of Education.
The PAC noted that there were persons at the prior Board meeting refusing to wear a mask and that those just outside the room itself who refused to wear a mask made increasingly more noise during the meeting, causing a recess in the meeting. It was also noted that the State’s Attorney and Police Chief had recommended the school board hold their meeting the same was the City Council and County Board were holding theirs at the time. The PAC concluded that the Board’s rationale for holding its meetings remotely directly concerned the conditions of the COVID-19 pandemic, based on the disruptive noncompliance with the mask requirement during the previous Board meeting. The mask requirement was among the measures in the Governor’s Executive Order 2021-22 designed to protect the public health in response to the rapid spread of the Delta variant of COVID-19.
Finally, the resident complained that not all persons can afford or have access to internet resources to participate in remote meetings. The PAC noted that the recent amendments to the Open Meetings Act specifically authorize a public body to conduct a remote meeting via “a web-based link.”