Each year, The Citizen Advocacy Center’s ("Center") lawyers answer more than 300 questions from individuals and community groups on matters of public significance including the operation of local government. A large portion of inquiries received by the Center involve the Open Meetings Act; specifically, when advisory committees must provide notice to the public and hold meetings in an open forum. Is a blue ribbon committee convened to make recommendations to a school district regarding referendum issues subject to the Open Meetings Act? How about an advisory committee created by an intergovernmental agreement between a municipality and a school district to address school funding? What about a committee organized and appointed by a village president to address village budget concerns? Finally, what about a meeting of dozens of mayors from the same county gathering to discuss transportation concerns? The answer to these scenarios and many others involves an analysis of the Open Meetings Act as well as relevant case law.
The intent of the Open Meetings Act is clearly stated in its opening paragraphs:
It is the public policy of this State that public bodies exist to aid in the conduct of the people’s business and that the people have a right to be informed as to the conduct of their business. In order that the people shall be informed, the General Assembly finds and declares that it is the intent of this Act to ensure that the actions of public bodies be taken openly and that their deliberations be conducted openly. . . . To implement this policy, the General Assembly declares: (1) It is the intent of this Act to protect the citizen’s right to know; and (2) The provisions for exceptions to the open meeting requirements shall be strictly construed against closed meetings. 1
Further, the Open Meetings Act defines "[p]ublic body" to include:
all legislative, executive, administrative or advisory bodies of the State, counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees or commissions of this State, and any subsidiary bodies of any of the foregoing including but not limited to committees and subcommittees which are supported in whole or in part by tax revenue, or which expend tax revenue, except the General Assembly and committees or commissions thereof.2 (Emphasis added).
Openness is required. The baseline rule is that all meetings of public bodies shall be open to the public unless the meeting falls within a specific exception listed in the Open Meetings Act.3 Accordingly, the statute makes it clear that advisory bodies are under the purview of the Open Meetings Act.
While the Open Meetings Act references "advisory bodies," it does not define what constitutes an advisory body. Instead, defining what is considered an "advisory body" subject to the Open Meetings Act has become a matter for the courts. In People ex rel. Cooper v. Carlson,4 a newspaper publisher filed a complaint when staff members from a development department were meeting to discuss issues related to a particular development application. The Directors from several department divisions voluntarily arranged "technical staff meetings" to assist the County Board and the County Development Committee in ensuring that all rules and regulations were complied with, and offered assistance in evaluating the application. The newspaper argued that if a majority of the staff members met periodically, they automatically became an "advisory committee" or a "public body" that was giving professional advice, and were therefore subject to the Open Meetings Act.5
In evaluating whether the meeting of staff directors to discuss a development issue before the County Development Committee was a public body subject to the Open Meetings Act, the Court stated that no statue, ordinance, resolution or other official action by the County Board or any committee of the County Board existed which designated or appointed the directors within the County Development Department (technical staff) as a public body or a subsidiary body. The intent of the periodic meetings by the staff members was to provide more efficient service to the Development Committee and the County Board.6 The Court ruled that Open Meetings Act applied to an appointed advisory committee rather than to employees who voluntarily met in the interest of efficiency or "good staff work."7 Furthermore, the public policy statement of the Open Meetings Act clearly directs its mandates to meetings of the "public commissions, committee, boards and councils and the other public agencies, not to voluntary meetings, conferences . . . of department heads or employees who seek to improve with dispatch their performances or function of assisting in the conduct of the people’s business."8
The determination of when an advisory committee is a "public body" subject to the Open Meetings Act was further discussed in Pope v. Parkinson.9 In that case, a student reporter for a university newspaper attended a meeting held by the University of Illinois Assembly Hall Advisory Committee ("Committee"). The Committee voted to exclude the reporter from the meetings, and then moved the meeting to a different location when the reporter refused to leave. The reporter sought a writ of mandamus commanding the Committee to provide notice of the meetings and to open the meetings to the public. The Court once again highlighted that because the Committee was not formally appointed by, or accountable to, any public body of the State, and because it was essentially an internal Committee within the University with the sole function of advising the University administrators on matters pertaining to internal affairs, it was not a "public body" subject to the Open Meetings Act.10 The Court also stated that the Committee was not created by statute nor were there defined limits on the Committee’s authority; the members were unofficially appointed. Again, the Court emphasized that the Open Meetings Act is not intended to open to the public the deliberations of merely informal advisory committees who discuss internal University affairs.11
In yet another case, the Court made rulings that distinguished when an advisory committee must meet in public. The case of The Board of Regents of the Regency University System v. Reynard12 involved a complaint seeking a determination as to whether the Open Meetings Act applied to the Athletic Council of Illinois State University ("Council"). The Council was an advisory council that provided advice and feedback to the Illinois State University president and athletic director regarding athletic issues. The Court stated that inclusion of an organization within the definition of ‘public body’ depends primarily upon an organization’s structure.13 In this case, the Court determined that because the Council was part of the formal organizational structure of Illinois State University, had specific duties outlined in bylaws, and had responsibilities that were broad in nature, the Council was indeed a public body subject to the Open Meetings Act. The Court distinguished the Council from the Assembly Hall Advisory Committee in the Pope case by stating that the Assembly Hall Advisory Committee was an informal, ad hoc committee, appointed by the university chancellor, which rendered advice to the chancellor solely on one specific internal university matter. 14
The appellate court in University Professional of Illinois, Local 4100 of the Illinois Federation v. Stukel described several factors that are determinative in the analysis of whether an advisory council is subject to the Open Meetings Act.15 Stukel involved a state university teachers’ union that claimed a Council of Presidents advisory committee, which made recommendations to a public body called the Illinois Board of Higher Education, was subject to the Open Meetings Act.16 The Appellate Court did not specifically answer the question of whether or not Council of Presidents advisory committee was subject to the Open Meetings Act because of the lack of specific facts in the complaint, but it did affirm the dismissal by a lower court17 . However, the Appellate Court’s outline of specific factors that a court should take into consideration when evaluating an advisory body case as falling under the Open Meetings Act is instructive. These factors include: who appoints the members of the entity; the formality of the appointment, whether the appointees are paid for their tenure; the entity’s assigned duties, including duties reflected in the entity’s bylaws or authorizing statute; whether its role is solely advisory or whether it also has a deliberative or investigative function; whether the entity is subject to government control or otherwise accountable to any public body; whether the group has a budget; its place within the larger organization or institution of which it is a part; and the impact of decisions or recommendations that the group makes.18 The above outline provides to the courts an outline of the necessary analysis to be conducted in determining if an advisory body is subject to the Act. The cases are essential to not just the instructing of courts, but in assisting public bodies seeking to establish an advisory council.
Questions of when an advisory committee is subject to the Open Meetings Act are fact specific, and clearly depend on the organizational structure of the committee. Moreover, although the above discussed cases provide guidance in assessing if an advisory committee is a ‘public body’ or not, this is still an evolving area of the law. As such, the Center recommends to public bodies that when a question of whether or not an advisory committee is subject to the Open Meetings Act arises, it is always better to err on the side of transparency. Practical, establishing policies that promote the democratic form of government and which seek to keep the public truly informed only improves the credibility and reputation of a public body’s commitment to open government.
1 5 ILCS 120/1 Laws 1957, p. 2892, § 1, eff. July 11, 1957. Amended by Laws 1965, p. 2643, § 1, eff. Aug. 5, 1965; Laws 1967, p. 1960, § 1, eff. July 24, 1967; P.A. 88-621, §5, eff. Jan.1 1995.
2 5 ILCS 120/1.02 Laws 1957, p. 2892, § 1.02, added by P.A. 82-378, § 1, eff. Jan. 1, 1982. Amended by P.A. 88-614, § 90, eff. Sept. 7, 1994; P.A. 90-517, § 2, eff. Aug. 22, 1997; P.A. 90-737, § 205, eff. Jan. 1, 1999; P.A. 91-782, § 5, eff. June 9, 2000; P.A. 92-468, § 5, eff. Aug. 22, 2001; P.A. 93-617, § 60, eff. Dec. 9, 2003.
3 5 ILCS 120/2 Laws 1957, p. 2892, § 2, eff. July 11, 1957. Amended by Laws 1965, p. 2643, § 1, eff. Aug. 5, 1965; Laws 1967, p. 1960, § 1, eff. July 24, 1967; P.A. 76-1023, § 1, eff. Aug. 26, 1969; P.A. 76-1345, § 1, eff. Sept. 6, 1969; P.A. 76-1841, § 1, eff. Oct. 10, 1969; P.A. 76-1914, § 1, eff. Oct. 10, 1969; P.A. 76-2215, § 1, eff. July 1, 1970; P.A. 77-1060, § 1, eff. Aug. 17, 1971; P.A. 78-311, § 1, eff. Oct. 1, 1973; P.A. 79-1112, § 1, eff. Nov. 20, 1975; P.A. 80-608, § 1, eff. Oct. 1, 1977; P.A. 81-559, § 1, eff. Sept. 11, 1979; P.A. 82-378, § 1, eff. Jan. 1, 1982; P.A. 83- 945, § 22, eff. Dec. 1, 1983; P.A. 83-1046, § 1, eff. Jan. 5, 1984; P.A. 83-1362, Art. II, § 106, eff. Sept. 11, 1984; P.A. 84-626, § 1, eff. Sept. 20, 1985; P.A. 84-988, § 1, eff. Sept. 25, 1985; P.A. 84- 1028, § 5, eff. Nov. 18, 1985; P.A. 84-1308, Art. II, § 104, eff. Aug. 25, 1986; P.A. 84-1431, Art. 8, § 2, eff. Nov. 25, 1986; P.A. 84-1438, Art. II, § 32, eff. Dec. 22, 1986; P.A. 85-1355, § 1, eff. Jan. 1, 1989; P.A. 86-287, § 1, eff. Jan. 1, 1990; P.A. 86-727, § 1, eff. Sept. 1, 1989; P.A. 86-1019, § 5, eff. Jan. 1, 1990; P.A. 86-1027, § 0.2, eff. Jan. 24, 1990; P.A. 86-1389, § 1, eff. Sept. 10, 1990; P.A. 87-491, § 1, eff. Jan. 1, 1992; P.A. 88-530, § 5, eff. July 1, 1994; P.A. 88-621, § 5, eff. Jan. 1, 1995; P.A. 89-86, § 5, eff. June 30, 1995; P.A. 89- 177, § 15, eff. July 19, 1995; P.A. 89-626, Art. 2, § 2-4, eff. Aug. 9, 1996; P.A. 90-144, § 5, eff. July 23, 1997; P.A. 91-730, § 5, eff. Jan. 1, 2001; P.A. 93-57, § 5, eff. July 1, 2003; P.A. 93-79, § 5, eff. July 2, 2003; P.A. 93-422, § 5, eff. Aug. 5, 2003; P.A. 93-577, § 90, eff. Aug. 21, 2003.
4 People ex rel. Cooper v. Carlson, 28 Ill.App.3d 569, 328 N.E.2d 675 (2nd App. Dist. 1975)
5 Id. at 572.
6 Id. at 571.
8 Id. at 572.
9 Pope v. Parkinson, 48 Ill.App3d 797, 363 N.E.2d 438 (4th App. Dist. 1977). Distinguished by People ex rel. Difanis v. Barr, 78 Ill.App.3d 842, 397 N.E.2d 895, 34 Ill.Dec. 223 (Ill.App. 4 Dist. 1979), Board of Regents of Regency University System v. Reynard, 292 Ill.App.3d 968, 686 N.E.2d 1222, 227 Ill.Dec. 66, 122 Ed. Law Rep. 752 (Ill.App. 4 Dist. 1997)
10 Id. at 799.
11 Id at 799.
12 Board of Regents of Regency University System v. Reynard, 292 Ill.App.3d 968, 686 N.E. 2d 1222 (4th App. Dist. 1997) Distinguished by University Professionals of Illinois, Local 4100 of the Illinois Federation of Teachers v. Stukel, 344 Ill.App.3d 856, 801 N.E.2d 1054, 280 Ill.Dec. 109, 184 Ed. Law Rep. 462 (Ill.App. 1 Dist. Dec 08, 2003)
13 Id. at 977.
14 Id. at 978.
15 University Professionals of Illinois, Local 4100 of the Illinois Federation of Teachers v. Stukel, 344 Ill.App.3d 856, 801 N.E.2d 1054 (1st App. Dist. 2003)
16 Id. at 858
17 Id. at 865
The Citizen Advocacy Center, a non-partisan, 501(c) (3), not-for-profit organization is dedicated to building democracy for the 21st Century by strengthening the public’s capacities, resources, and institutions for self-government. For more information about the Center, our current projects and programs, or to become a volunteer, please call (630)833-4080 or email cac@ citizenadvocacycenter.org.
Terry Pastika, Executive Director
Sarah Klaper, Community Lawyer