FEATURE ARTICLE

It happens all the time: a resident appears at a park district meeting with a request of the board. The board hears the resident and takes action on the request. The resident leaves the meeting feeling good about being able to address the board and affect change. However, under a recent decision by the Illinois Appellate Court, this scenario will no longer be able to play out in public meetings of Illinois governmental bodies.

The 4th District Illinois Appellate Court has held that action on items not specifically set forth in the agenda of a regularly scheduled public meeting is not allowed under the Open Meetings Act. The opinion states that a municipal body may consider items not stated specifically on the printed agenda, but may not take action upon those items. This ruling now requires a public body to specifically list an item of new business on its agenda at least 48 hours in advance of taking any action on that item.

This new requirement will slow down the governmental body and will result in the requirement of considering business over a span of several meetings.

In Rice v. Board of Trustees of Adams County, 2002 W.L. 110427 Ill.App.4d, the board of trustees of Adams County adopted a resolution providing benefits for elected county officials. In that case, the agenda contained a generic section entitled "New Business." Under discussion of "New Business," a trustee brought up the topic of benefits and moved to adopt a resolution approving the alternate benefit program. The resolution passed at that meeting. A lawsuit was brought against the board and the plaintiff argued a violation of the Open Meetings Act. The county board acknowledged that the benefit program was not specifically set forth in the agenda, but rather was included in the catchall provision of "New Business."

The county board argued that pursuant to Section 2.02 of the Open Meetings Act, the consideration of an item not specifically set forth in the agenda was allowed. The county interpreted this to mean that new business could be added to an agenda at a regular meeting, discussed and then voted upon. The court disagreed and citing "public policy," made a distinction between consideration and action by a board. The court's holding can be summed up as follows.

1. A governmental body may consider new items not specifically listed on an agenda in a regular public meeting; however,

2. The public body may not take action on those items, (i.e., the taking of a vote).

Prior to this case, many municipalities and other governmental bodies such as park districts would consider and take action upon items not specifically listed on an agenda. Many public bodies have long taken action on items of new business that arise after the posting of the meeting agenda. Typically, these are items that are brought to the board's attention by members of the public or by trustees themselves at a meeting. Oftentimes items discussed in executive session are voted upon after returning to open session. Under the new law, those items should be listed on the agenda after executive session in order to take action upon them.

This new requirement will slow down the governmental body and will result in the requirement of considering business over a span of several meetings. However your board feels about this new requirement, you should be mindful of it and ensure that new business be specifically listed on the agenda prior ro taking action on it. Failure to do so could result in a violation of the Open Meetings Act.

TIMOTHYA. STRATTON is an attorney with Zukowski, Rogers, Flood & McArdle in Chicago and Crystal Lake, Illinois. He is also a trustee on the McHenry County College Board or Trustees and focuses his practice in the area or municipal and governmental law.

May/June 2002   17