[author: Maria Mazza]

In a recent non-binding opinion, the Public Access Counselor (PAC) of the Office of the Attorney General found that the Electoral Board of the City of Naperville violated the Open Meetings Act (OMA) by failing to openly deliberate its final decision concerning a proposed smart meter referendum.

The Board met on January 3, 2012, to consider placing a referendum on the primary election ballot to stop the installation of smart meters. The meeting was re-convened to consider whether the group supporting the referendum had obtained a sufficient number of signatures to support the referendum. In order to make a determination concerning this issue, each of the three Board members individually met with the City’s attorney to review the voter registration records of the individuals that had signed the petition. Based on this review, the Board concluded that the petition contained an insufficient number of signatures.

The City’s attorney then circulated a draft decision rejecting the inclusion of the referendum on the ballot due to the insufficient number of signatures, which was to be presented during the Board’s January 12, 2012 meeting. Prior to the meeting, the Board’s attorney reviewed the decision with each of the Board members and obtained their signatures. During the meeting on January 12, the Board approved the written decision.

The PAC noted that the purpose of the OMA is to require public bodies to openly deliberate and act on pending matters. The videotape of the January 11 meeting demonstrated that the Board merely announced its decision at the meeting without openly deliberating the decision. Instead of deliberating, each of the Board members recited the reasons for the decision, which had already been finalized and memorialized in the written decision. Accordingly, the PAC concluded that the Board violated the OMA by reaching a final decision before the meeting and failing to openly deliberate during the meeting.

The PAC also found that the City’s notice of the January 12 meeting lacked agenda items and, thus, failed to inform the public that the City would consider taking final action on the referendum. Matters a public body intends to take action on must be listed in the agenda with sufficient detail to notify the public that the body may take action on such items. As we reported in a recent Alert, the legislature recently adopted an amendment to the OMA effective January 1, 2013, requiring that a public body post an agenda that sets forth the general subject matter of any resolution or ordinance which will be the subject of final action at a meeting.

Although the City was not penalized for its OMA violations, public bodies should proceed with caution and ensure that all deliberations and final decisions concerning pending matters are conducted openly. Further, this decision demonstrates that the PAC will scrutinize agendas to ensure that the public is provided with sufficient detail concerning matters subject to final action.