Municipal MattersMunicipal Matters

ZUKOWSKI, ROGERS, FLOOD & MCARDLE50 Virginia StreetCrystal Lake, Illinois 60014

Founded in 1957

Crystal Lake Office:Richard G. Flood

David W. McArdleMelissa J. CooneyMichael J. Smoron

Kelly A. CahillE. Regan Daniels Shepley

Kevin G. CostelloCarlos S. Arévalo

Jenette M. SchwemlerRuth A. Schlossberg

Vonda K. VaughnRyan M. Borgmann

Ryan P. FarrellGregory J. Barry

Anne K. E. BrophyJennifer J. Gibson

Kevin A. ChrzanowskiElizabeth F. Wakeman

Of Counsel:Timothy J. CurranFrancis S. LorenzH. David Rogers

The Lawyers of Zukowski, Rogers, Flood & McArdle

50 VIRGINIA STREETCRYSTAL LAKE, ILLINOIS 60014

815-459-2050www.zrfmlaw.com

Timely news in the area of municipal law

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© 2008 Zukowski, Rogers,Flood & McArdle

Municipal Matters is preparedby the attorneys and staff ofthe law firm of Zukowski,Rogers, Flood & McArdle. Itis intended for general infor-mation purposes only anddoes not constitute legaladvice. This information isnot intended to create, and itdoes not create an attorney-client relationship. Readersshould not act upon thisinformation without first consulting an attorney.

Zukowski, Rogers, Flood & McArdle's quarterly newsletter that allows units of government and theiremployees to stay up-to-date on legal matters in an ever-changing legal climate.

August 2008 Vol. 3, Issue 3INSIDE

THIS ISSUE

• Government in the Sunshine: Open Meetings Act and Freedom of Information Act (Part I)

• Dates to Remember

• Q & A

• ZRFM Attorney News

Founded in 1957

Meetings Act, the good news is that yours t a ff (as well as your lawyers) are generallywell versed in the Act and should be ableto steer you away from the most obviousviolations.

Public Meetings: All public meetingsare subject to the Open Meetings Act: Thetrick here is that many more things consti-tute “public meetings” than you mightinitially suspect. Under the Act, a “publicmeeting” is any gathering of a majority ofa quorum of the members of the publicbody for purposes of discussing publicbusiness. This means that if you have aBoard made up of seven people, and threeof you (a majority of a quorum) are allinvited to the same birthday party or aLabor Day cookout where you begin dis-cussing public business (as opposed to thegifts that you have bought for the birthdayhonoree or how the Cubs are doing thislate in the season) you have just violatedthe Open Meetings Act. Why? Becauseyou were not in a properly noticed, publicforum. Did you mean to? No, of coursenot. But this is the type of inadvertentmistakes you should avoid. Equally sur-prising is that your physical presence isnot required under the Act. If you findyourself on an unplanned conference calldiscussing your plan to finance a newsewer treatment plan with the same twoother trustees from the party, you will havejust held a meeting. That same conferencecall with only one other trustee, however,would not be a violation because you didnot have a majority of a quorum.

SIDEBAR: Do you have a majority ofa quorum?

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GOVERNMENT IN THE SUNSHINE:Open Meetings Act and Freedom of Information Act (Part 1)By Ruth Schlossberg

Municipal MattersMunicipal Matters

As we head into Fall, a new school yearand a time of renewal, we thought it wouldbe appropriate to revisit and offer a “refresh-er course” in an area that you are called todeal with as public officials, namely theso-called Sunshine Laws. While one hun-dred years ago it may have been possible toconduct government in an “open” fashionby meeting in a public place with the doorsopen, compliance with sunshine laws is amuch more complicated undertaking today.The theoretical starting point of sunshinelaws is that government should be of, byand for the people and that the functioningof government should be open and accessi-ble to the public. This is supposed to lead toimproved public confidence, better decisionmaking and fact finding, more control overgovernmental functions, improved respon-siveness and better participation by the public.Of course, these benefits must be weighedagainst competing public interests in effi-ciency, confidentiality and, more recently,security. As a government official, however,these theoretical concerns may seem lessimportant to you than learning the actualrules you must follow under those laws.Thus, this article is intended as a brief guideon some important concepts in the OpenMeetings Act (OMA) and Freedom ofInformation Act (FOIA) issues of which youshould be most aware. THE ILLINOIS OPEN MEETINGS ACT

The Illinois Open Meetings Act providesthat public business is to be conducted in thepublic view. This includes both deliberationabout policy as well as final action. The Actp re s c r i b e s rules to ensure this happens.Although, it is relatively easy to inadver-tently violate the terms of the Open

WelcomeIt never hurts to have arefresher on a topic thataffects elected officials.In this issue, we featurethe first of a two part article in which RuthSchlossberg reviews the basics of IllinoisSunshine laws.

Also included in thisissue are importantdates from August toNovember 2008.

If you have any ques-tions, comments, or suggestions for articlesin upcoming issues,please contact us.

Carlos S. Arévalo maybe contacted by mail,phone, fax or e-mail at:

50 Virginia StreetCrystal Lake, IL 60014( 8 1 5 ) 4 5 9 - 2 0 5 0 - t e l e p h o n e(815)459-9057-facsimilecarevalo@zrfmlaw.com

Government in the Sunshine: - continued from page 1

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This does not mean you cannot greet yourfellow trustees in the barber shop or be civil toeach other on the street. It does not even meanthat you cannot meet for political party strategysessions to discuss how to win the next election– as long as you are careful to discuss electionsand not “the public business”. The Act onlyrequires that discussion of public business by amajority of a quorum must take place in a prop-erly noticed public forum. The public policymerits and demerits of this law are beyond thescope of this article, but it is worth thinkingabout as you seek to work with your colleaguesto build responsible and responsive public policy.

Remember that you inadvertently alsocould violate the Open Meetings Act with a seri-al discussion by e-mail with your fellow boardmembers. Thus, it is good practice to avoidcopying all of the Board on your e-mail corre-spondence relating to public business. If youhave opinions about a policy matter, send yourcomments to a staff member. If you must com-municate with another member of your board(or with a member small enough to avoid cre a t i n ga majority of a quorum) try to remember to askthat person not to forward the message to othermembers and thereby risk creating a discussionof public policy outside of a public forum.

Public Business: How do you know ifsomething is public business? Ask yourself if itis within the scope of your authority as an elect-ed official. If you think something is “publicbusiness” under the Act, then it probably is. Erron the side of being conservative about this.

Notice: The public must get advance noticeof meetings and should be given the right toattend all meetings at which any business of thepublic body is discussed or acted upon. Part ofyour clerk’s job is to make sure that meetingsare properly noticed under the Act includingposting agendas at least 48 hours before a meeting.Except in limited emergency circ u m s t a n c e s ,your public body may not act on any item thathas not been included in the agenda because thepublic will not have received sufficient noticeunder the Act.

Minutes and Records: Your public bodymust keep written minutes of your meetingswhich must be available for public inspection.You must also permit reasonable recording bythe public of your meetings including videotaping and filming as well as tape re c o rd i n gor otherwise re c o rding the meeting.However, you may set rules to keep this frominterfering with your meetings or to protect awitness who does not want to be recorded giv-ing testimony.

Electronic Attendance: You can onlyattend public meetings electronically if yourpublic body has adopted rules for such atten-dance, if a quorum is physically present and ifyou are unable to attend because of illness ordisability, for employment purposes or as a

result of your work for the public body or for afamily or other emergency. Notably missingfrom this list of permitted reasons is vacation.So if you are away on vacation, you may notparticipate in a public meeting via telephone orany electronic or digital medium even though n e wtechnology makes such participation possible.

Executive or Closed Sessions: There areexceptions to the requirement that all mattersbe discussed in open session. Th ese excep-tions, which must be narrowly constru c t e d ,are permitted to be discussed in closed session– although all votes (except those relating to theminutes of a closed session) must be taken inpublic session. Closed or executive sessions arepermitted for twenty-four reasons. Here is asummary of those you are most likely toencounter as a municipal official:

Employment:• The appointment, employment,

compensation, discipline, perform-ance, or dismissal of specific employees of the public body or legal counsel for the public body.

• This includes hearing testimony on a complaint lodged against an employee or against legal counsel todetermine its validity.

• This only applies to discussions a b o u tspecific employees and not to general employment policy discussions.

• Collective negotiating matters between the public body and its employees or their representatives.

• Deliberations concerning salary schedules for one or more classes ofemployees.

Vacancies: The selection of a person tofill a vacant public office.Discipline: Consideration of disci-pline, performance or removal of the occupant of a public office. Self Review: Self evaluation, practicesand procedures or professional ethics,when meeting with a representative ofa statewide association of which the public body is a member (most com-monly the IML).Real Estate: Real estate matters such asp u rchase, lease and pricing of pro p e r t y.Security: Security procedures and theuse of personnel and equipment to respond to an actual, a threatened, or areasonably potential danger to the safety of employees, students, staff, the public, or public property.Litigation: Litigation when an action against, affecting or on behalf of the particular public body has been filed and is pending before a court or administrative tribunal, or when the public body finds that an action is p robable or imminent.

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Q’s and A’s of Municipal GovernmentAt the beginning of the year we increased vending machine license feesand were recently told by a vending machine company that the fees areillegal because we didn’t hold a public hearing. Is the vending machinecompany correct?

Yes, a municipality is required to hold a public hearing beforeincreasing any license fees for vending machines. Notice of thehearing has to be mailed at least 30 days before the hearing dateto the last known address of each person holding a currentlicense. Effective June 30, 2006, the statute (65 ILCS 5/11-55-2)was amended limiting the amount of an annual increase. Theamendment states the amount “shall not exceed the greater of (i)$25, (ii) the amount of the fee multiplied by 5%, or (iii) theamount of the fee multiplied by the percentage increase in theConsumer Price Index for All Urban Consumers for all itemspublished by the United States Department of Labor during the12-month calendar year preceding the year in which the fee isincreased.” This statute is applicable to both home rule and non-home rule municipalities with a population under 1,000,000.

Important Deadlines to Remember:At least every 6 months: review executive session minutes inclosed session to see if they can be released to the public. If anyminutes can be released, this must be done in open session.

Within 30 days after the passage of a municipal ordinance thatimposes any fine, penalty, imprisonment or forfeiture, or makingan appropriation, it must be published in either pamphlet formor in a newspaper with general circulation in the municipality.Ordinances that impose a fine, penalty, etc., are not effective until10 days after publication.

Dates to Remember:

Sept. 2: Last day for local governing boards to adopt a res-olution or ordinance to allow a binding public question toappear on the Nov. 4 general election ballot.

Sept. 2: Last day for county, municipal, township and parkboards to place advisory referenda on the Nov. 4 ballot byresolution.

Sept. 4: Last day for the local election official to certify anybinding public question on the ballot.

Sept. 16: First day for circulating petitions for the April 7,2009, consolidated election.

Oct. 1: Last day to file a certified copy of any ordinance orresolution imposing or discontinuing a retailer’s occupa-tion tax (or home rule sales tax), or changing the rate, withthe Dept. of Revenue to take effect Jan. 1.

Oct. 9: The April 7, 2009, consolidated election is 180 daysfrom now. If compensation is going to be changed fornewly elected officials, it must be done by ordinance 180days before they take office.

Oct. 31: If your fiscal year started May 1, the municipaltreasurer should have filed an annual account of moneysreceived and expenditures incurred during the precedingfiscal year with the municipal clerk. The clerk is requiredto publish the annual account if your population exceeds500. (If your fiscal year started Jan. 1, the deadline is June30.)

Oct. 7: Except for grace period registration, the last day toregister to vote for the Nov. 4, 2008.

Nov. 27 & 28: The law offices of Zukowski, Rogers, Flood& McArdle are closed in observance of the Thanksgivingholiday.

ZRFM Attorney NewsKelly Cahill and Ruth Schlossberg will be speaking at aLorman seminar on September 24, 2008. Their topic will beon Open Meetings Act, Freedom of Information Act and theLocal Records Act.

Rich Flood and Ruth Schlossberg are featured speakers forthe Illinois Municipal League Conference on September 25 –28, 2008, discussing impact fees and economic development.Carlos Arévalo will also speak at the IML Conference on thetopic of pensions and catastrophic injuries to police andfirefighter personnel.

Government in the Sunshine: - continued from page 2Minute Review: Discussion of closed session minutes whether for purposes of approval by the body of the minutes or semi-annual review of the minutes.

In order to properly hold a closed session you must firsthold a legally valid open meeting. A member must then moveto go into closed session and a roll call vote must be taken inopen session. The motion must mention the specific exemptionwhich allows your body to go into closed session. In closed ses-sion you should be sure only to discuss the subject for whichyou went into the closed session, do not wander into topics moreproperly discussed in an open meeting. You must exit yourclosed session to take formal action although you can directyour staff to take certain actions while still in closed session,such as directions to continue negotiations with a real estate sell-er but to go no higher than X dollars. At the close of your closedsession, you should return to your open meeting with a roll calland state for the public in generality that a discussion was heldpursuant to the exception and state whether any formalaction is necessary.

You must create minutes of closed meeting that must beapproved in a later closed session (which is the only time thatyou can take formal action in closed session) so do not throw outthe clerk from your meetings. You also must make and keep avideo or audio recording of the meeting for at least eighteenmonths. This recording cannot be destroyed until minutes area p p roved and the public body approves the destru c t i o n .Recordings will remain confidential unless and until the publicbody finds confidentiality is no longer needed or if a courtorders the release. Generally confidential material remains con-

fidential until the reasons for such confidentiality pass.Closed session meeting minutes must be reviewed semi-a n n u a l l y, and if there is no longer a reason to re m a i nconfidential, the minutes must be re l e a s e d .

In our next issue, look for Part II of this article discussing theFreedom of Information Act.