OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan AWORNEY GENERAL January 8' 2019 Via eleclromc mail ML John Kraft RE: OMA Request for Rcvicw 2018 PAC 56086 Dear Mr. Klafi: The Otfice oflhe Allomey General, Public Access Bureau, has received lhe allached response lo your Requesl for Review from [he DuPage Counly Eleclion Commission, You may, but are nu! required, Iu reply in wriling Io llre public body's mashed response Ifyou choose to reply, yuu submll your reply I0 Ihis office 7 business days ofyour receipl nflhis Ieller, 5 120/3V5(c) (Wesl 2016). Plcasc send a copy ofynur reply to Mr. Conway as wall. If you have any qucslions abuul this matter, please comacl me at Ihe Chicago office address llsledbelcw. Very Imly yours, rn E, TERESA LIM A 'sranr Altnmey General Public Access Bureau Allilchmem cc: Via mail Mr, Sean Conway Atlomcy for DuPage Coumy Election Commission Bond, Dickson Sc Conway 400 Soulh Knoll Street, Unit Illmolsozm - Izlmlumn mum-3374 . Fay mzmuaoa um (6K37529AH16 Mr. John Kraft January 8, 2019 Page 2 Wheaton, Illinois 60187 BOND, DICKSON & CONWAY 400 S. Knoll Street, Unit C, Wheaton, Illinois 60187 P 630. 681. 1000 F 630. 681. 1020 January 3, 2019 VIA E- MAIL TRANSMISSION Ms. Teresa Lim Assistant Attorney General Public Access Bureau Office of the Attorney General 100 W. Randolph St. Chicago, Illinois 60601 tlim cr atg. state. il. us RE: OMA Request for Review — 2018 PAC 56086 Our File No. 97- 114 Dear Ms. Lim: Please be advised that this Firm represents the DuPage County Election Commission ( the Election Commission") in connection with this matter. In this capacity, 1 have been directed to respond to the Public Access Counselor' s (" PAC") request for a response to the complaint of Mr. John Kraft under the Open Meetings Act (" OMA") in connection with the Election Commission' s public meeting dated December 12, 2018. Specifically, Mr. Kraft alleges that one members, John Boske (" Member Boske"), attended the meeting by of the Election Commission telephone for a reason that is not permitted under the OMA. The PAC has requested that the Election Commission provide the PAC a copy of the December 12, 2018 meeting agenda, minutes and any Election Commission rules governing member attendance by means other than physical presence. The PAC has also requested that the Election Commission respond in writing to the allegations in Mr. Kraft' s Request for Review. Records Requested Enclosed herewith is a copy of the Election Commission' s December 12, 2018 meeting agenda and the Election Commission' s rules governing member attendance by means other than physical presence. The Election Commission will provide the minutes of its December 12, 2018 meeting by supplement as the minutes have yet to be prepared due to the filing and adjudication of nine time sensitive Electoral Board matters. An audio recording of the December 12, 2018 meeting can be located at http:// dupage. iqm2. com/ Citizens/ Default. aspx. Teresa Lim January 3, 2019 Page 2 The Telephone Participation of Member Boske at the December 12, 2018 Meeting was Proper under the OMA Due to his Out -of -State Attendance of a Family Matter Section 7 of the OMA provides: If a quorum of the members of the public body is physically present as required, by Section 2. 01, a majority of the public body may allow a member of that body to attend the meeting by other means if the member is prevented from physically attending because of: ( i) personal illness or disability; ( ii) employment purposes or the business of the public body; or ( iii) a family or other emergency. " Other means" is by video or audio conference. 5 ILCS 120/ 7. A " family or other emergency" is not further defined in the OMA and has not been interpreted by any reported Illinois case. The OMA training portal maintained by the Illinois Attorney General' s Office does not provide any guidance on the definition or contours of a " family or other emergency" http:// foia. ilattorneygeneral. net/ Training. aspx. Here, Member Boske participated in the December 12. 2018 meeting via telephone due to an out- of-state family matter. Moreover, two of the three Members of the Election Commission were in physical attendance at the meeting and could have conducted all business on the agenda without the participation of Member Boske. However, due to the composition of the Election Commission, mandated by sections 6A- 1 and 6- 22 of the Election Code, Member Boske felt a unique obligation to participate in the meeting as he is the sole member on the Election Commission from the leading Democratic Party. 10 ILCS 5/ 6A- 1; 10 ILCS 5/ 6- 22 ( requiring that two of such commissioners at least shall always be selected from the 2 leading political parties of the state, one from each of such parties). Member Boske believed that the OMA authorized his participation in the meeting by telephone. Additionally, all items voted on for final action received approval by the unanimous vote of all three members, two of whom were physically present. Mr. Kraft requests that the PAC declare each and every final action item where Member Boske participated void and unenforceable. However, the OMA does not provide for this specific See generally, Ferris, Thompson & Zweig, Ltd. v. Esposito, 2015 IL 117443, ¶ 16, 25 An administrative agency' s powers are limited to those granted by the legislature and any action taken by an agency must be authorized specifically by statute" and w] hen an agency acts outside its specific statutory authority, it is said to have acted without jurisdiction"). Section 3. 5 specifically authorizes the PAC, upon concluding that a violation of authority. N. E. 3d 637, 641 (" this OMA has occurred, to issue " directives" to public bodies. 5 ILCS 120/ 3. 5. Section 3. 5 of the OMA does not provide the PAC specific authority to declare null and void final actions of public bodies unlike section 3 of the OMA, which expressly provides Illinois courts the specific authority to declare null and void final actions of public bodies but only those actions taken at a closed meeting in violation of the OMA. 5 ILCS 120/ 3; see contra, Bd. of Educ. of Waukegan Teresa Lim January 3, 2019 Page 3 Only. Unit Sch. Dist. 60 97 N. E. 3d 85, 116. v. State Charter Sch. Comm' Illinois n, 2018 IL App ( 1st) 162084, ¶ 128, Moreover, section 3 of the OMA was enacted prior to section 3. 5; therefore, it is presumed that if the legislature intended to vest the PAC with the authority to declare null and void final actions of public bodies, it would have expressly provided for that authority in section 3. 5 of the OMA. State v. Mikusch, 138 III. 2d 242, 247- 48, 562 N. E.2d 168, 170 ( 1990) It is presumed that the legislature, in enacting various statutes, acts rationally and with full knowledge of all previous enactments."). Notwithstanding, the nullification irregularities, " is too extreme and of final actions, taken in open session, involving OMA not supported by the Open Meetings Act." Chicago School Reform Bd. of Trustees v. Martin, 309 III. App. 3d 924, 936, 723 N. E. 2d 731. 740 ( 1st Dist. 1999); see also, Williamson v. Doyle, 112 111. App. 3d 293, 300, 445 N. E. 2d 385, 390 ( 1st Dist. 1983) (" The statute permitting the court to declare the action void refers by its terms only to a Gerwin v. Livingston County Bd., 345 111. App. 3d 352, 358, 802 N. E. 2d 410, 414 ( 4th Dist. 2003); Board of Educ. School Dist. No. 67 v. Sikorski, 214 111. App. 3d 945, 952, 574 N. E. 2d 736, 741 ( 1st Dist. 1991). Significantly, this is true concerning telephonic participation irregularities. People ex ref Graf v. Vill. of Lake Bluff, 321 111. App. 3d 897, 908, closed session."'); 748 N. E. 2d 801, 811 ( 2d Dist. 2001), rev'd on other grounds, 206 111. 2d 541, 795 N. E. 2d 281 2003) (" Assuming arguendo, that telephonic participation in a meeting violates the Act in some way, plaintiffs fail to demonstrate why the extreme remedy of nullification is appropriate in the present case."). Given the circumstances of this matter, such nullification would be far too extreme and inappropriate considering the underlying purpose of the OMA to ensure " that public bodies exist to aid in the conduct of the people' s business and that the people have a right to be informed as to the conduct of their business." 5 ILCS 120/ 1. Mr. Kraft' s grievance in this matter does not implicate a violation to the fundamental purpose of the OMA, as all final actions of the Election Commission at its December 12, 2018 meeting occurred in open view of the public on proper notice so as to preserve the public' s right to know. Id. Accordingly, the Election Commission requests that the PAC make a determinationthat this matter does not implicate an OMA violation. Should you have any follow- up questions do not hesitate to contact me. Very truly yours, DUPAGE COUNTY ELECTION COMMISSION By: / s/ Sean Conway Sean Conway, One of its Attorneys