OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS

Lisa Madigan
ATTORNEY GENERAL
November 30, 2018

Via elec/rom'c mail
Ms. Deborah Wilson

Via eleclronic mail

The Honorable Patrick Hotelier
President, Board of Trustees
Village ofWheeling

2 Community Boulevard
Wheeling, Illinois 60090
phorcher@wheelingil.gov

Via eleclmm'c mail

Ms. Mallory A. Milluzzi

Attorney for the Village of WheelIng
Klein. Thm'pe Jenkins, Ltd.

20 Nonh Wankel Drive. Suite l660
Chicago. Illinois 60606
mamilluzzi@ktjlaw.com

RE: OMA Request for Review -- 2017 PAC 49551
Dear Ms. Wilson, President Homher, and Ms. Milluui:

This determination letter is issued pursuant I0 section 3 5(e) ofthe Open Meetings
Act (OMA) (s ILCS As explained below, the Public Access Bureau
recommends that the Board ul'Trusiccs (Board) ufthe Village of Wheeling (Village) review
ponions ofits rules and procedures concerning public comment at meetings.

BACKGROUND

On September 7, 20l7, Ms. Deborah Wilson submitted a Request for Review to
the Public Access Bureau alleging that the Board violated OMA during its September 5. 2017.
meeting by enforcing restrictions on public comment that are not written in the municipal code,
Specifically, Ms Wilson alleged that she attempted to comment about two specific trustees and

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The Honorable Patrick Horcher

Ms. Mallory A. Milluzzi
November 30, 2018
Page 2

her claim that they were improperly operating home- based businesses but was interrupted by the
Village President, Mr. Patrick Horcher, who informed her that comments should be addressed to

the Board as a whole and that she could not engage in personal attacks against individual
members. She contended that the purpose of her comments was to hold the trustees accountable

in their enforcement of the Village' s residential zoning ordinance and dealings with home- based
businesses. Ms. Wilson also asserted that she was unaware of any Village rules that required her
to address comments to the Board as a whole or that prohibited personal attacks.

On September 18, 2017, this office forwarded a copy of the Request for Review
to the Board and asked it to provide this office with copies of the Board' s established and

recorded rules governing public comment, together with a written response to Ms. Wilson's

OMA allegations. This office also asked the Board for a copy of the meeting agenda, open
session minutes, and any verbatim recordings of the meeting. On September 27, 2017, this
office received a written response with links to copies of the meeting agenda, the Village Code,

and video recordings of past Board meetings, including the meeting at issue. This office also
received a copy of the draft meeting minutes for this office' s confidential review. On October 3,
2017, this office forwarded a copy of the Board' s response to Ms. Wilson; she replied that same
day, requesting from the Village a copy of "Robert' s Rules of Order" as referenced in the Board' s
response.

DETERMINATION

It is " the public policy of this State that its citizens shall be given advance notice
of and the right to attend all meetings at which any business of a public body is discussed or
acted

upon

in any way."

5 ILCS 120/ 1 ( West 2016). "

The Open Meetings Act provides that

public agencies exist to aid in the conduct of the people' s business, and that the intent of the Act

is to assure that agency actions be taken openly and that their deliberations be conducted
openly." Gosnell v. Hogan, 179 111. App. 3d 161, 171 ( 5th Dist. 1989).
Section 2. 06( g) of OMA provides that "[ a] ny person shall be permitted an
opportunity to address public officials under the rules established and recorded by the public

body." The Attorney General has concluded that section 2. 06( g) of OMA " requires that all
public bodies subject to the Act provide an opportunity for members of the public to address
public officials at open meetings." See 111. Att'y Gen. Pub. Acc. Op. No. 14- 012. issued
September 30, 2014, at 5; see also Ill. Att' y Gen. Pub. Acc. Op. No. 14- 009, issued September 4,
2014, at 4 (" The plain language of section 2. 06( g) of OMA provides that individuals are entitled
to address a public body subject only to a public body' s established and recorded rules.").

Although OMA does not specifically address the nature of rules that a public body may
permissibly

adopt,

a public

body

generally may

promulgate

reasonable "

time, place

and

manner"

 Ms. Deborah Wilson
The Honorable Patrick Horcher

Ms. Mallory A. Milluzzi
November 30, 2018
Page 3

rules aimed at preserving order and decorum and ensuring that meetings can be conducted
efficiently. I11. Att' y Gen. Pub. Acc. Op. No. 14- 012, at 5.
Notwithstanding the legitimate interest in establishing rules governing order and
decorum, in order to withstand constitutional muster, any restrictions on public comment that are

content -based must be narrowly drawn to serve compelling state interests. See IA. Rana
Enterprises, Inc. v. City of Aurora, 630 F. Supp. 2d 912, 922 ( N. D. I11. 2009). As the Ninth
Circuit has explained:

An ordinance that governs the decorum of a city council meeting is
not facially overbroad if it only permits a presiding officer to eject
an attendee for actually disturbing or impeding a meeting:
However, actually disturbing or impeding a meeting means actual
disruption of the meeting; a municipality cannot merely define

disturbance in any way it chooses, e. g., it may not deem any
violation of its rules of decorum to be a disturbance. (
citations

and

ellipses

omitted.) (

Internal

Emphasis in original.) Acosta v.

City of Costa Mesa, 718 F.3d 800, 811 ( 9th Cir. 2013).
In Acosta, the court struck down as overbroad a city ordinance that provided for the removal of
any person who commits disorderly, insolent, or disruptive behavior, including * * * personal,
impertinent, profane, insolent, or slanderous remarks." Acosta, 718 F. 3d at 811. The court held
that the ordinance was unconstitutional because it permitted individuals to be ejected for the
proscribed types of remarks even if those remarks did not disrupt meetings. Acosta, 718 F. 3d at
813.

In its response to this office, the Board asserted that it had restricted Ms. Wilson' s
comments in accordance with sections 2. 03. 060( a), 2. 03. 180( d), and 2. 03. 210 of the Municipal
Code of Wheeling ( Code).'
Section 2. 03. 060(a) of the Code provides:
a)

Citizen Concerns and Comments at Village Board

Meetings. Members of the general public may address the
board with concerns or comments regarding issues relevant
to village business. Issues relevant to village business are
defined to mean information about village events; issues

that the public body has the authority to address; items listed

https://

Wheeling, 111. Municipal Code, ch.
library. municode. com/ il/ wheeling/ codes/ code_

2. 03 §§ 060( a), 180( d), 210A ( 2018), available at
of

ordinances? nodeld=

WHMUCO.

 Ms. Deborah Wilson
The Honorable Patrick Horcher

Ms. Mallory A. Milluzzi
November 30, 2018
Page 4

on the agenda; and items or issues previously voted on by
the village board or that the village board has the authority
to consider or vote on in the future. The village president or

his designee shall strictly restrain comments to matters that
are relevant to village business and shall not permit
repetitious

comments

or arguments.

Members

of the general

public who wish to address the board must sign the request to

speak form prior to the commencement of the public meeting.

The persons submitting a petition, concern or other comment
shall be allotted five minutes to present their points. The

manager or corporate authorities may respond for the village.
Emphasis

added.)

Section 2.03. 180( d) of the Code further provides:
d)

The president shall maintain order and decorum at all

times during official meetings of the corporate authorities.
The president shall call to order any trustee who transgresses
these rules, and shall admonish all other persons who do not

abide by these rules or the village ordinances. The president
shall eject from the meeting any person other than a village
officer who interferes with the orderly conduct of the meeting
or who persists in disorderly, disruptive conduct and may call
on any officer of the police department for assistance.
In addition, section 2. 03. 210 of the Code provides that "[ t] he rules of order of

the corporate authorities of the village of Wheeling shall consist of the provisions of this
chapter and, except where inconsistent or in conflict with this chapter or with Illinois law, the
provisions of the new

revised

Robert'

s

Rules

of

Order to the

extent

otherwise

applicable."

In

connection with this provision, the Village cited to Robert' s Rule of Order No. 7, highlighting,
in pertinent part:

Speakers must address their remarks to the presiding officer, be
courteous in their language and deportment, and avoid all

personalities, never alluding to the officers or other members by
name, where possible to avoid it, nor to the motives of members.
Debate

must

address

issues

not personalities and that no one

 Ms. Deborah Wilson
The Honorable Patrick Horcher

Ms. Mallory A. Milluzzi
November 30, 2018
Page 5

is permitted to make personal attacks or question the motives of
other

speakers.

In its response to this office, the Board asserted that " the Village' s rules and
regulations are content and viewpoint neutral and serve the significant government

interest of

maintaining civility and decorum. Speakers are only subject to restriction when their speech
disrupts, disturbs, or otherwise impedes the orderly conduct of the Village Board meeting." 2 The
Board contended that the "[ r] estrictions imposed on Ms. Wilson and other speakers derive from a

perfectly sustainable and content - neutral desire to prevent badgering, constant interruptions, and

disregard for the rules of decorum." 3 ( Emphasis omitted.)
This office has reviewed the video recording of the public comment portion of the

Board' s September 5, 2017, meeting!' Ms. Wilson walked up to the podium and began by
asking Trustee Mary Krueger, for her support in dropping actions against certain businesses.
The Village Manager, Jon Sfondilis, began to respond to Ms. Wilson when she stopped him

and stated that she was talking to Trustee Krueger. President Horcher then stepped in and
informed Ms. Wilson that her comments needed be addressed to the Board as a whole on
matters of Village business.

Ms. Wilson asked again the same question to Trustee Krueger.

President Horcher asked Ms. Wilson if she understood what he had said. Ms. Wilson did not
respond and proceeded to speak about a certain alleged business and its connection to Trustee

Krueger. President Horcher asked her once more if she understood what he had explained.

Ms. Wilson did not respond and continued speaking about the alleged business. President
Horcher again informed Ms. Wilson that her comments had to pertain to the Village business
at hand.

Ms. Wilson responded

that her comments

pertained

to Village

business

and

continued to speak about the alleged business and the Village' s enforcement of its zoning
ordinance. She then referenced Trustee Krueger and Trustee Ray Lang, at which point
President Horcher attempted to intervene. After a few attempts at speaking to her, President
Horcher informed Ms. Wilson that personal attacks were not needed and to follow the rules.
Ms. Wilson disputed the characterization of her comments as personal attacks and made a
comment
about him "
President Horcher responded: "
I need you to stick to
switching sides."
the

rules,

or

to

sit

down."

Ms. Wilson resumed commenting about the home business

2Letter from Mallory Milluzzi, Village Attorney, Klein Thorpe & Jenkins, Ltd., to Teresa Lim,
Assistant Attorney General, Public Access Bureau, Office of the Attorney General ( September 27, 2017).

3Letter from Mallory Milluzzi, Village Attorney, Klein Thorpe & Jenkins, Ltd., to Teresa Lim,
Assistant Attorney General, Public Access Bureau, Office of the Attorney General ( September 27, 2017).

4Village of Wheeling, Board Meeting Video 9- 5- 2017 ( September 5, 2017),
http:// www. wheelingil. gov/ 657/ Board- Meeting- Video- 9- 5- 2017 ( last

visited

March 21, 2018), 15: 57.

 Ms. Deborah Wilson

The Honorable Patrick Horcher

Ms. Mallory A. Milluzzi
November 30, 2018
Page 6

ordinance until she made another allegation against Trustee Lang, and President Horcher
again attempted to interject. Ms. Wilson continued speaking until a Board member appeared
to call out to President Horcher. President Horcher stopped Ms. Wilson and told her she was

done and that her time was up. Ms. Wilson resumed speaking against President Horcher' s
protestations; he asked for an officer to escort her out, and the five- minute bell rang as the

officer walked up to her. Ms. Wilson finished her comments and exited.
In explaining the restrictions it imposed on Ms. Wilson' s comments during its
September 5, 2017, meeting, the Board contended that Ms. Wilson attempted to debate or
argue with a specific trustee rather than address the Board as a whole. The Board asserted

that " Ms. Wilson started off her public comment with demanding an answer from a specific
Trustee. i5 The Board contended that "[ t] his initial exchange was disruptive and a violation of
the Village Code, as she demanded an answer from a Trustee, interrupted and argued with the
Village Manager and ignored the direction of the Village President to badger a Trustee. i6
The Board further stated that Ms. Wilson had been permitted to speak about the issue of

home- based business on other occasions, including at its August 21, 2017, meeting. The
Board

that

asserted

consequently,

it "had already

Ms. Wilson' s

made

comments

a

decision

about

were " repetitive

home based businesses[,]"

and

argumentative."'

and

Additionally,

the Board contended that Ms. Wilson was not prohibited from making comments about
individual trustees, but that " she cannot make personal, slanderous remarks about individuals

that are not relevant to their performance or qualifications as village officials." 8 The Board
also argued that Ms. Wilson' s tone and behavior were disruptive, asserting that she
continually raised her voice and spoke over the Village Manager and the Village President"

and made certain comments that were disruptive. 9

5Letter from Mallory Milluzzi, Village Attorney, Klein Thorpe & Jenkins, Ltd., to Teresa Lim,
Assistant Attorney General, Public Access Bureau, Office of the Attorney General ( September 27, 2017).

6Letter from Mallory Milluzzi, Village Attorney, Klein Thorpe & Jenkins, Ltd., to Teresa Lim,
Assistant Attorney General, Public Access Bureau, Office of the Attorney General ( September 27, 2017).

7Letter from Mallory Milluzzi, Village Attorney, Klein Thorpe & Jenkins, Ltd., to Teresa Lim,
Assistant Attorney General, Public Access Bureau, Office of the Attorney General ( September 27, 2017).

BLetter from Mallory Milluzzi, Village Attorney, Klein Thorpe & Jenkins, Ltd., to Teresa Lim,
Assistant Attorney General, Public Access Bureau, Office of the Attorney General ( September 27, 2017).

9Letter from Mallory Milluzzi, Village Attorney, Klein Thorpe & Jenkins, Ltd., to Teresa Lim,
Assistant

Attorney

General,

Public

Access Bureau, Office

of

the

Attorney

General ( September

27, 2017).

 Ms. Deborah Wilson
The Honorable Patrick Horcher

Ms. Mallory A. Milluzzi
November 30, 2018
Page 7

In this case, the video recording shows that Manager Sfondilis' interruption of
Ms. Wilson at the beginning of her public comment was in response to a question she
repeatedly posed to Trustee Krueger. The Board clarified that Manager Sfondilis was
attempting to explain to Ms. Wilson that questions would not be answered during the public
comments session.

This office' s review of section 2. 03. 060( a) of the Code confirmed that the

Village Manager may respond on behalf of the Village. As the Board acknowledged, nothing
in OMA prevents a member of the public from asking public officials questions. However,
OMA does not require a public official to respond to questions

or comments that are directed

to him or her. See, e. g., Ill. Att' y Gen. PAC Req. Rev. Ltr. 35858, issued October 20, 2015, at
2.

Because OMA does not require public officials to respond to questions, and because the

Village's established and recorded rules permit the Village Manager to respond on behalf of

the Board, this office concludes that Manager Sfondilis did not improperly interrupt Ms.
Wilson at the beginning of her comments, and Trustee Krueger Was not required to respond to
questions.

On the other hand, with respect to the Board' s interruptions of Ms. Wilson' s

comments when she directed remarks towards or made claims about specific Trustees, the

Board did not demonstrate that its restrictions were reasonably necessary to maintain order,
decorum, or efficiency.

Encompassed within the right to comment is the right of members of

the public to address specific public officials, albeit OMA does not require that those public
officials to respond to the comments.

In this case, the Board was not required to respond to

Ms. Wilson' s comments or debate with her in response to her allegations. However, this

office is unable to conclude from its review of the recording that Ms. Wilson' s comments
were clearly creating a disturbance. Although Ms. Wilson spoke in a raised voice at times,
she did not make threats, use profanity, or otherwise engage in conduct that disrupted the
meeting.

To the extent that criticizing a public official by name could be considered a
personal attack" that disrupted the meeting, this office has previously reviewed a public
body' s decision to prohibit a speaker from completing his public comments based on a rule
that prohibited "' personal attacks against others'
or " rude or slanderous remarks."
III. Att' y

Gen. PAC Req. Rev. Ltr. 39069, issued April 5, 2016, at 3. In that matter, this office
emphasized: "[
W] hether a remark constitutes a ' personal attack' is an entirely subjective
question that is necessarily dependent upon the listener' s personal perspective. When
criticism involves the conduct of present or former public officials in the performance of their
public

duties,

significant

latitude

must

be

allowed."

Ill. Att'y Gen. PAC Req. Rev. Ltr.

39069, at 3. Because the speaker' s attempt to comment at the meeting did not appear to create
a

disturbance

or

interfere

with

the efficiency

of

the

proceedings,

this

office

concluded

that the

 Ms. Deborah Wilson
The Honorable Patrick Horcher

Ms. Mallory A. Milluzzi
November 30, 2018
Page 8

public body improperly prohibited him from completing his comments.
Req. Rev. Ltr. 39069, at 4.

Ill. Att' y Gen. PAC

Likewise, this office is unable to conclude that Ms. Wilson' s use of the two

Trustees' names disrupted, or imminently threatened to disrupt, the meeting at issue. Her
comments

were critical of two trustees and appeared

to allege that actions

in their personal

lives were inconsistent with their public position on a zoning issue. Although those
comments were directed at the Board members personally, they concerned the issue of the

Board' s enforcement of the Village zoning ordinance. Accordingly, this matter is
distinguishable from the Federal District Court case the Board argued is similar. Scroggins v.

City of Topeka. Kan., 2 F. Supp. 2d 1362, 1373 ( D. Kan. 1998) ( city council did not violate
first amendment to the United States Constitution by restricting personal comments about an
appointee to a mayoral commission that were not directly relevant to the business of the
public body).

Additionally, this office has reviewed section 2. 03. 060( a) of the Code and notes
that it does not prohibit a member of the public from asking the Board to reconsider a decision
previously made. Section 2. 03. 060( a) of the Code defines " village business" as including

information about village events; issues that the public body has the authority to address; items
listed on the agenda; and items or issues previously voted on by the village board or that the
village

board has the authority

to

consider

or vote

on

in

the future." (

Emphasis added.)

Under

that broad definition, comments pertaining to the Board' s enforcement of a zoning ordinance
appear to fall within the meaning of "village business," even if the Board has previously voted on
the matter. In any event, the recording of the meeting indicates that the Board' s restrictions of
Ms. Wilson's comments were directed towards her references to particular trustees in connection
with public business of the Board, rather than repetitiousness.

The Board also highlighted Ms. Wilson' s conduct at previous meetings, including
the Board' s August 21, 2017, meeting. This office has reviewed the recording of the Board' s
August 21, 2017, meeting and recognizes the Board' s concerns about the animated manner in
which Ms. Wilson appeared to address the Board about the alleged businesses at issue.

A public

body' s attempts to preserve decorum may not be unreasonable in those instances in which a
member of the public engages in demonstrative actions and conduct that threatens disruption or

becomes disruptive to the meeting. See Steinburg v. Chesterfield County Planning Comm' n, 527
F. 3d 377, 387 ( 4th Cir. 2008) ("[ D] isruption may take the form of * * * speaking in a tone or
manner that threatens disruption.");
see also I11. Att' y Gen. PAC Req. Rev. Ltr. 46149, issued

April 10, 2018, at 5 ( concluding that an individual' s animated conduct, which included moving
around the meeting room, continued raising of his voice, and repeated thrusting of his finger in
the direction

of

the Board " disrupted the decorum

of

the meeting to the extent that the Board'

s

  

Ms, Deborah Wilson

The Honorable Patrick Horcher
Ms. Mallory A. Milluzzi
November 30, 2018

Page 9

interruption of his public comment was not unreasonable"). In this case. however. Ms, Wilson
did not appear to engage in the same type ofbelligerent or potentially threatening conduct.
While Wilson commented again on the alleged businesses at the September 5. ml 7,
meeting, she wrapped up her comments when the bell for the 5-minute limit rang; her comments
did not further hold up the meeting. Under these limited circumstances, this office cannot
conclude that Ms. Wilson's naming of the specific I'rustees disturbed the decorum (lithe
meeting. Accordingly, this office concludes that the Board improperly restricted portions of Ms,
Wilson's public comments during its September 5, 2017, meeting.

In accordance with the conclusions expressed in this determination, this office
requests that the Board permit members of the public to address and raise concerns regarding the
conduct ofindividual Board members which relates to public business at future meetings,
notwithstanding that individual Board members are not required to respond to comments. The
Public Access Counselor has detertnined that resolution of this matter does not require the
issuance ofa binding opinion This letter shall serve to close this matter. lfyou have any
questions, please contact me at the Chicago address lrsted on the first page of this letter.

Very tmly yours.

LIM

Assistant Attorney General

Public Access Bureau

49551 0 206 pub comment proper improper mun