By ED NASH
Political editor of The News-Sun,
Waukegan, since 1969, he has covered
the Illinois General Assembly since 1959.
Nash is a graduate of Yale and joined
The News-Sun in 1955 after working
for the Pampa (Texas) Daily News and
New York Times.
When should the doors close?
Open meetings act
Can formal action be taken by a public body during a closed meeting? This issue rose out of a 1975 meeting of a Lake County board which was closed to the public in order to discuss and act on a land acquisition ordinance. Whether the meeting set a dangerous precedent or is legitimately provided for in the state's open meetings act may be decided by the Supreme Court and could spur proposals for changes in the statute, which is already known as one of the toughest in the nation
BEHIND CLOSED DOORS --- for the first time in its 17 years, the Lake County Forest Preserve District board of commissioners met in secret session. In October of 1975 the commissioners who also serve as the Lake County Board, the county's governing body barred the public in order to dis- cuss land acquisition. The board's attorney said that under an unappealed Illinois appellate court decision they could meet privately. At the same time, the Lake County state's attorney and a Lake County legislative leader said they intended to move on judicial and legislative fronts to put a halt to such a practice.
The reverberations are still being felt. Over a year later, Robert Sabonjian, the colorful and controversial mayor of Waukegan, the Lake County seat, is in on the act. Sabonjian has charged that the Forest Preserve District is pulling a "land grab" on Waukegan city recreational lands and has threatened to haul the district before the U.S. Supreme Court.
The legal issues surrounding the controversy are all related to the Illinois open meetings act. The 20-year-old state law, which was strengthened considerably a decade ago, was designed to let the citizenry know what their governmental bodies are doing. The statute affects some 6,500 state and local governmental bodies, the largest number by far of any state in the union.
Whether the law is good or bad, effective or unnecessary, depends on who is talking. "It's the stiffest, the best of any such law in the nation," says Anthony Scariano, attorney of Park Forest, the former state legislator who sponsored the Illinois law. "You could drive a Mack truck through all the others," says Scariano, speaking of similar laws in 35 other states. But Donald T. Morrison of Deerfield, the land acquisition attorney for the Lake County forest preserves, calls the open meetings act "really a sop to the press ... the press could find out what it wanted to know without the law." Morrison also raises another question: "Why does the open meetings act ignore the executive branch of government?" It is in that area, he suggests, where such a law is really needed.
The Illinois law, however, does not appear to single out the legislative branch of government when it says: "It is the public policy of this state that the public commissions, committees, boards and councils and the other public agencies in this state exist to aid in the conduct of the people's business. It is the intent of this act," the law goes on, "that their actions be taken openly and that their deliberations be conducted openly."
Changes in the law
Scariano points out that before 1957 when the law was enacted, there were far
too many cases of governmental bodies
carrying on their business like a private
corporation. Even after the new law was
on the books, it was argued that it did
not apply to meetings where only
discussion, not formal action took
place. Ten years ago exceptions were
clarified, coverage extended and the law
strengthened generally. Extensive requirements were also added for providing proper notice of meetings of
public bodies. The law states:
"All meetings of any 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 . . . including but
not limited to committees and subcommittees . . . supported in whole or in
February 1977 / Illinois Issues / 3
Open doors or closed doors; that is the question. And if they're closed, when and how often and for what reason?
part by tax revenue, or which expend
tax revenue, shall be public meetings . . ."
"It goes without saying," Scariano states, "that such special purpose local governmental bodies as library boards, sanitary districts, drainage districts, mosquito abatement districts, park districts, etcetera, are also required to conform to the Act. Also covered, though frequently needing reminders of it, are such agencies as the Illinois Tollway Authority, the various state university boards of trustees or regents or governors, county boards of supervisors or commissioners, zoning boards, boards of tax appeals, plan commissions and boards of election commissioners."
Exceptions to the law
There are, however, specific exceptions. They include the Illinois Commerce Commission, Pardon and Parole
Board, Youth Commission, grand and
petit jury sessions. Collective bargaining
sessions, meetings about the appointment, employment or dismissal of an
employee, student disciplinary cases
and the judiciary are also excluded. It is
also worth noting that the Illinois
General Assembly carefully exempted
itself, along with its "committees or
commissions." (But the Constitution
[Article IV, Sec. 5c] mandates open
meetings of the House and Senate and
their committees unless a chamber
directs otherwise by a two-thirds vote of
the members elected to that house.)
Another exemption is sessions of public bodies where the acquisition of real estate (but not personal property) is considered like the Lake County Forest Preserve District meeting where the people were barred. However, as Scariano says, "the exceptions provide that closed meetings may but not necessarily must be held in such cases. All other portions of such meetings, if any, must be open to the public." Scariano adds that "home rule" governmental bodies provided for by the new Illinois Constitution are also under the umbrella of the open meetings act.
Given the clearly delineated coverage of the law, it was a bombshell when George R. Bell, president of the Lake County Forest Preserves, called a "special executive session" on the advice of Morrison, the district's attorney. The meeting was called "for the sole purpose of considering and acting on an ordinance for the acquisition of certain lands for Forest Preserve District purposes in Lake County, 111." The key word in this statement is not "considering" but "acting" on an ordinance. Jack Hoogasian, then Lake County state's attorney, promptly voiced his "concern about the dangerous precedent. It could lead to grave legal implications." Hoogasian said at the time, and still believes, that the matter should be resolved in the Illinois Supreme Court.
Just as promptly, State Rep. John S. Matijevich of North Chicago, chairman of the Illinois House Executive Committee, at the time said that his committee would look into prospective changes in the open meetings act. A special subcommittee of his committee has already held two public hearings on the "public's right to know" one in Chicago, one in Springfield.
At one of these hearings, Del Wright, editor of The News-Sun in Waukegan, said that the Lake County secret session raised a larger question: "Is it really in the public interest to allow closed meetings to consider acquisition of property? Insiders seem to have a way of finding out about the purchase site, and whether secrecy actually reduces the expenses for the public doesn't appear that certain." As it happened. The News-Sun, using a source on the board, published nine of the ten sites under consideration on the very day they were being considered behind closed doors (most of the sites, it later turned out, were actually available in the published minutes of a committee meeting almost four months before).
The Lake County Forest Preserve board had been all set to go into secret session without any bother. But Hoogasian, Matijevich, members of the news media and others insisted that board members vote to do so. When they did, the vote was an overwhelming 15 to 8 in favor of a closed meeting. But, before the vote, Morrison, the board attorney, explained why he had advised that it be a secret meeting. In so doing, he spoke for many a public official in similar situations. Morrison said he based his advice on a May 4, 1972, Illinois appellate court case, Collinsville Community Unit School District No. 10 v. Benjamin and Lillian Witte, in which the high court ruled that a "school board was not limited to considering only acquisition of property in executive session with formal action required to be taken at public meeting. Legal action concerning acquisition or sale of real property, including passage of motion to acquire property could be taken in closed session," the court ruled in a decision that was never appealed and which, Morrison says, "is now Illinois law."
Problem of interpretation
One of the exceptions to the open
meetings act is a meeting "where the
acquisition of real property is being
considered . . . but no other portion of
such meetings may be closed to the
public." In another part of the law, it
says that "no final action may be taken
at a closed session." Morrison notes that
the "no final action" phrase is not in the
section of the law about acquiring
property. In the Collinsville case the
court said that "we do not so interpret
the law" to mean that such formal action
must be taken in open session.
The high court also said: "Public knowledge of board intentions and actions resulting from compulsory public deliberative sessions when considering the purchase of real estate would destroy any advantage to be gained from negotiation and work a severe detriment upon the board and the public they represent."
Scariano insists, however, that the act is "clear and unmistakable. Both the
4 / February 1977 / Illinois Issues
deliberations and the actions, final or not, of all units of government (with the few exceptions noted) must be conducted and taken at open public meeting. Most important of all," he says, "although deliberations upon the excepted subjects may be held in a closed session, final action upon all matters must be taken in an open meeting."
As Morrison told the forest commissioners, the General Assembly had "some reason" for making exceptions to the open meetings act. But it is difficult to determine, he said, because no records were kept of debate. "Judicial determination," he said, is "the only alternative."
So Morrison looked to the Collinsville decision. And Scariano looked to
an appellate court case in 1975 out of DuPage County in which it was decreed that the intention of the General Assembly in enacting the open meetings act was to favor open deliberation as well as open action.
Atty. Gen. William J. Scott said that exceptions to the law are few. He quoted a 1974 appellate court decision in a case involving news broadcasters and the City of Springfield, where the court said that exceptions "must be narrowly construed because they derogate the general policy of open meetings." At the same time, the state's top elected legal officer noted that "there is no provision in the Act which specifically voids action taken at an improperly closed meeting and no Illinois court has ever so held."
Despite all the controversy, Scariano believes that the open meetings act is "working very well." He cited two basic reasons: (1) The American tradition of "general compliance ... a lot of people say they may not agree with a law, but they'll follow it;" (2) The news media has been "extremely vigilant. . . suits have been filed." What makes the Illinois law the best in the land, Scariano said, is that it is the only one which requires that the press be notified of meetings of public bodies at the same time and in the same way as the members of the bodies are notified. "That's unique," he said, "and puts teeth in the law."
The Illinois law has gained a certain amount of notoriety. Matijevich, whose committee held the two public hearings, says he is getting requests for transcripts from law schools and other state legislatures. Writing in the Northwestern University Law Review, Douglas Q. Wickham put it plainly: *"0ur society firmly believes, on the one hand, that the right to participate in our democracy includes the right to be informed. The people have no real power without factual knowledge of what their government is doing to and for them." To be well informed, Wickham writes, "the public should have some access to the ongoing process of decision-making; not only to what is done, but also to why it is done and what alternatives are considered and rejected. A truly democratic electorate vitally needs to know this information." However, he says, alluding to the title of a decade-old Florida law, "we must concede that there are limits to 'Government in the Sunshine.'" In the early stages of working out a specific problem, Wickham says, "it makes a good deal of sense for any governmental body to retain a zone of privacy within which its members can air internal disagreements." One of Wickham's major points: "The value competing against a 'right to know' then is not a 'right to secrecy,' but an assurance of some insulation from the intense heat of public pressure . . . absolute openness will detract from the overall public interest in informed and rational governmental decisions."
People's right to know
Morrison puts it this way: "The
people's right to know is like all other
such rights there is a certain degree of
limitation." Open doors or closed doors; that is the question. And if they're
closed, when and how often and for
what reason?
Douglas Q. Wickham, "Let the Sun Shine In!" Northwestern University Law Review 68 (July-August 1973): 480-501.
Selected State
Reports
State documents
"Providing Civil and Criminal Legal
Services to Inmates Incarcerated in Correctional Institutions in Illinois: An Evaluation
of Projects Funded by the Illinois Law
Enforcement Commission," by Mott-McDonald Associates, Inc. (December 1975),
165pp.
"There is growing availability of inmate
legal services, but their supply is still
inadequate to the legitimate demand for
them." Evaluates three projects to provide
such services: Prison Legal Services Project
(PLSP), Institutional Legal Services Project
(ILSP), and Civil Legal Aid and Social
Service Project (CLASS).
"Report," Subcommittee on Charitable
Institutions, Legislative Commission to
Visit and Examine State Institutions (April
1976), 45 pp.
Descriptions of and recommendations on
eight mental health facilities, developmental
centers, and nursing homes.
"Overlap or Duplication of Activities
between the Department of Finance, the
Office of the Comptroller [and] the Office of
the Auditor General," Illinois Office of the
Auditor General (February 1976), 57pp.
Lists areas of (1) duplications between
the Department of Finance and the Office of
the Auditor General; (2) no duplication or
overlap between the Department of Finance
and the Office of the Auditor General; (3)
possible violation of state law by Department of Finance reorganization which
created the Bureau of Audits and ultimately
severed it from the Division of Accounting.
Other reports
"Rulemaking under the Illinois Pollution Law," by David P. Currie in University
of Chicago Law Review, vol. 42 (1975) :457- 508.
The author is former director of the
Illinois Pollution Control Board (PCB). He
assesses the first five years of the Illinois
Environmental Protection Act, and notes
that under the act the PCB is given broad
rulemaking power to set substantive standards to regulate air pollution, water
pollution, solid waste disposal, public water
supplies, and noise.
Items listed under State Documents have
been received by the Documents Unit,
Illinois State Library, Springfield, and are
usually available from public libraries in the
state through interlibrary loan. Requests for
copies should be sent to the issuing agency.
/S.C.
February 1977 / Illinois Issues / 5