OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS

KWAME RAO.UL
ATTORNEY

GENERAL

September 11, 2020

Via electronic mail

Mr. Mick Dumke
Reporter
ProPublica Illinois

mick d'umke@propublica. org
Via electronic. mail

Mr.' Jeffrey C. B. Levine
Deputy Corporation Counsel
City of Chicago, Department of Law
121 North LaSalle. Street, Suite 600
Chicago, Illinois 60602

jeffreyaevine@cityofchicago. org
RE: OMA Request for Review —2020 PAC 62981
Dear Mr: Dumke and Mr. Levine:

This determinationis issued pursuant to section 3. 5( e) of the Open Meetings Act
OMA) ( 5 ILCS 120/ 3. 5(

e) (

West 2018)).

For the reasons explained below, the Public Access

Bureau concludes that the City Council ( Council) of the City of Chicago ( City) violated the
requirements of OMA in connection with conference call gatherings of members of the Council
on March 26, 2020, March 30, 2020, and April 6, 2020.

BACKGROUND

On May 13, 2020, this office received a Request for Review from Mr. Mick

Dumke, on behalf of ProPublica Illinois, alleging that the Council gathered by video and/ or
audio conference in violation of OMA on March 26, 2020, March 30, 2020, April 6; 2020, and

May 8, 2020. In particular, Mr. Dumke alleged the Council' s gatherings were not open to the
the meetings

On May 18, 2020, this office
sent a copy of the Request for Review to the Council and requested that it or its representative

public

and

no

notice

of

was

provided

to the public.

provide a written response to the allegations in the Request for Review. The Public Access

500 South Second
100 West
601

South

Street, Springfield,

Randolph

University

Street,

Chicago,

Ave., Carbondale,

217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046

Illinois 62701 • (
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Illinois

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62901 • (

618)

529- 6400 •

TTY: ( 877) 675- 9339 •

Fax: ( 618)

529- 6416

 Mr. Mick Dumke

Mr. Jeffrey C. B. Levine
September

11, 2020

Page 2

Bureau did not receive a response to its letter. On June 8, 2020, this office sent a second copy of
the Request for Review to the Council and requested that it respond to Mr. Dumke' s allegations.

On June 26, 2020, the Public Access Bureau received the Council' s written answer and
of the discussions
during the gatherings. On June 29, 2020, this office forwarded a

summaries

copy of the Council' s answer to Mr. Dumke; he replied the same day.
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

5 ILCS 120/ 1 ( West 2018). "

way."

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 Ill. App. 3d 161, 171 ( 5th Dist. 1989).
Section 2(

a)

of

OMA ( 5 ILCS 120/ 2( a) ( West 2018),

as amended by Public Acts

101- 031, effective June 28, 2019; 101- 459, effective August 23, 2019) provides that "[a]ll.
meetings of public bodies shall be open to the public unless excepted in subsection (c) and closed
in

accordance

with

Section 2a."

Section 1. 02 ( 5 ILCS 120/ 1. 02 ( West 2018)) defines a

meeting" as:

A] ny gathering, whether in person or by video or audio
conference,

telephone

call, electronic

means ( such as, without

limitation; electronic mail, electronic chat, and instant messaging),
or other means of contemporaneous interactive communication, of

a majority of a quorum of the members of a public body held for
the purpose of discussing public business or, for a 5 - member'

public body, a quorum of the members of a public body held for
the purpose of discussing public business.
If a gathering of a majority of a quorum of public body members is determined to be a
meeting,'." then
and

an

that

is

agenda (

all the requirements of OMA apply, including proper advance posting of notice
5 ILCS 120/ 2. 02 ( West 2018)),

convenient

allowing

public

and

open

comment (

to the

public (

holding the meeting at a specified time and place
keeping minutes, and

5 ILCS 120/ 2.01 ( West 2018)),

5 ILCS 120/ 2. 06(

a), (

g) ( West 2018)).

The requirements of OMA are not automatically triggered when a majority of a
quorum or a quorum of a public body attends a gathering. See University Professionals of
Illinois v. Stukel, 344 Ill. App. 3d 856, 868 ( 1st Dist. 2003) ( OMA is not " triggered every time
public

officials

meet

and

converse"). "

Rather,

the Act

is designed

to prohibit

secret

deliberation

 Mr. Mick Dumke

Mr. Jeffrey C. B. Levine
September 11, 2020
Page 3

and action on business which properly should be discussed in a public forum due to its potential
impact

on

the

public."

People

ex

rel.

Difanis

v.

Barr, 83 Ill. 2d 191, 202 ( 1980);

see

also

Nabhani v. Coglianese, 552 F. Supp. 657, 660- 61 ( N.D. Ill. 1982):
A " meeting" under the Act, has been variously described as a

gathering " designed to discuss or reach an accord with regard to
public business,"[
exchange

of

citation],

or as "'

facts preliminary

collective discussion... and

to the

ultimate

decision."' [ Citation]

Third New International Dictionary ( 1976) defines " deliberate" as
follows: " to ponder or think about with measured careful

consideration and often with formal discussion before reaching a
decision or conclusion."

The Attorney General has stated that " whether a gathering falls within the
definition of meeting as used in the Act, would depend upon the peculiar facts in each situation."

Ill. Att' y .Gen. Op. No. S- 726, issued March 22, 1974, at 126. The Attorney General has also
noted that "[

i] n theory, there is no absolute prohibition against the members of a public body
attending an ' informational meeting' without triggering the application of' OMA, as long as the
members do

not

make "[

d] eliberational statements" or engage in the discussion of public

business amongst themselves.

Ill. Att' y Gen.

Op.

No. 95- 004, issued

July

14, 1995,

at

10- 11.

In

that opinion, the Attorney General concluded that the " mere fact that a majority of a quorum of
the members of a public body attend and participate in a bona fide presentation on new
legislative developments in an area of public concern" does not make a gathering subject to

OMA, but that the extensive discussions of public business by members of two county boards
during

the presentation

did

trigger

the requirements

of

OMA. ( Emphasis in

original.)

Ill. Att' y

Geni Op. No. 95- 004, at 10- 11; see also Nabhani, 552 F. Supp. at 661 ( a gathering does not

constitute a meeting for purposes of OMA when there is " no examining or weighing of reasons
for or against a course of action, no exchange of facts preliminary to a decision, [ and] no attempt
to reach accord on a specific matter of public business.").

In his Request for Review, Mr. Dumke alleged that the mayor, City officials, and
the members of the Council gathered to hold non- public " briefings" by video or telephone
conference where information was shared and aldermen " ask questions and make suggestions,

and discussions and debates about [ C] ity policies often ensue among aldermen, the mayor and
members

of

her team."'

In its response to this office, the Council acknowledged

that the mayor

and employees in her administration held conference calls concerning the COVID- 19 pandemic
with a quorum or majority of a quorum of the Council on March 26, 2020, March 30, 2020, and

1E -mail from Mick Dumke, Reporter, ProPublica Illinois, to Public Access, Office of the Attorney
General (

May

13, 2020).

 Mr. Mick Dumke

Mr. Jeffrey C. B. Levine
September 1. 1, 2020
Page 4

April 6, 2020.

2'

The Council

characterized

the gatherings

as "

briefings,"

asserting the

requirements of OMA did not apply because ( 1) the alderman did not participate in the
in

gatherings

a

legislative capacity; ( 2) no deliberation

occurred;

and ( 3) the matters discussed

were not " public business" as that term is used in section 1. 02 of OMA. In particular, the

Council asserted that " the aldermen participated in the calls as community representatives, not as
legislators. i3 In addition, the Council argued that the calls were not " meetings" subject to OMA

because the aldermen participating did not deliberate on legislative matters. In his reply, Mr.
Dumke disputed the Council' s assertion that aldermen must reach a consensus to deliberate on a
matter of public business. He asserted that the aldermen' s participation in the calls constituted

deliberation, and stated that the aldermen " raise[ d] questions or concerns about comments the
administration or other aldermen had made. Aldermen offered both suggestions and critiques —

some 'of them accepted and some rejected at different points by the mayor, her aides, or other
aldermen. i4

The Council asserted that the aldermen participating on the call did so as as
community- based first responders" to receive " the most current and relevant information to share

with their constituents." 5 The Council argued that when aldermen gather for that purpose they
donot

body" under OMA. Section 1. 02 of OMA defines a " public body" to
include " all legislative, executive, administrative or advisory bodies of the State, counties,
meet

townships,

as

cities, villages, incorporated

corporations,

legislative

a " public

boards, bureaus,

body

of

the

City,

and "

ILCS 5/ 3. 1- 40- 5 ( West 2018).

towns, school districts and all other municipal

committees
shall

or commissions

meet

in

accordance

of

this

with

State[.]"

the

The Council is the

Open Meetings Act." 65

The Public Access Bureau has consistently held that

The Council is comprised of fifty aldermen and the mayor, who is the presiding officer. A
quorum of the Council is twenty- six aldermen, therefore a majority of a quorum is fourteen. The City' s response to
this office stated that attendance at the gatherings wasn' t recorded, but it appears from summaries of the discussions

that thirty- one aldermen attended the March 30, 2020, meeting, twenty- five attended the first March 26, 2020,
gathering while nineteen attended a second gathering on the same day, and sixteen attended the April 6, 2020,
gathering. The response asserted that only nine aldermen, which is not a majority of a quorum of the Council,
participated in the May 8, 2020, conference call. In his reply, Mr. Dumke did not dispute the Council' s assertion
there was not a majority of a quorum of the aldermen present for that gathering. Consequently, the available

information indicates that the May 8, 2020, conference call did not constitute a meeting subject to the requirements
of OMA.

3Letter from Jeffrey C. B. Levine, Deputy Corporation Counsel, Department of Law, City of
Chicago to Matt Hartman, Assistant Attorney General, Public Access Bureau ( June 26, 2020), at 2.
4E - mail from Mick Dumke, Reporter, ProPublica Illinois, to Lorraine Dunham, [ Paralegal], Public
Access

Bureau ( June 29, 2020).

5Letter from Jeffrey C. B. Levine, Deputy Corporation Counsel, Department of Law, City of
Chicago

to Matt Hartman,

Assistant

Attorney

General,

Public

Access

Bureau ( June 26, 2020),

at

2.

 Mr. Mick Dumke

Mr. Jeffrey C. B. Levine
September

11; 2020

Page 5!

commnications involving less than a majority of a quorum of the members of a public body are.
not meetings subject to the requirements of OMA. See, e. g., Ill. Att' y Gen. PAC Req. Rev. Ltr.

248271, issued June 8, 2015, at 2 ( e- mails exchanged by two members of a seven -member public
did

body). However, when a majority of a quorum of
aldermen gather to participate in a discussion about the City' s response to a crisis such as the
body

not constitute

a

meeting

of a public

current pandemic, they do so as the legislative body of the City of Chicago even if they do not
or otherwise take final action on how to respond. See City of Champaign v. Madigan, 2013

vote

IL

App ( 4th)

120662, ¶ 42, 992 N. E. 2d 629, 630 ( 2013) ("[

have convened

members

a

city

council

meeting ( or ' study

O] nce the individual city council
session'),

it can reasonably be said that

they are acting in their collective capacity as the 'public body' during the time the meeting is in
session.").

If there were a distinction between members of the Council gathering as " community

representatives"

rather than as legislators, it would be a distinction without a difference—

aldermen represent their constituents in the community by virtue of their positions as elected
members of the Council, which is a legislative body. Consequently, this office concludes that
the aldermen gathered in their capacities as members of the Council and therefore constituted a

public body" as that term is defined in FOIA.
The Council further' asserted that it did not hold " meetings" under OMA because
the

did

aldermen

argued

that

debating

or

for

a

not

deliberate

legislative

voting

and

body,

on actual

did

such

not
as

or potential

discuss

the

business.

Specifically, the Council
discussing public business' means
no more, no less. i6 The Attorney General

public

Council, "'

legislation –

has stated, however, that " discussing public business" must be construed broadly, concluding
that ' [

d]

eliberation * * *

exchange

of

connotes not only collective discussion, but the collective acquisition and

facts preliminary to the

ultimate

decision."

Ill. Att'y Gen. Op. No. S- 726, issued

March 22, 1974, at 125 ( quoting Sacramento Newspaper Guild v. Sacramento County Board of
691)

Cal. Rptr. 480, 485 ( Cal. Ct. App. 1968)).
App. 2d 41, 47- 48,
same opinion, the Attorney General also quoted Sacramento Newspaper Guild for the

Supervisors,

proposition

263 Cal.

In the

that,

t] here is rarely any purpose to a nonpublic pre -meeting conference
except to conduct some part of the decisional process behind

closed doors. Only by embracing the collective inquiry and
discussion stages, as well as the ultimate step of official action,
can an open meeting regulation frustrate these evasive devices.
Emphasis

I11. Att'y Gen. Op. No. S- 726, at 125 ( quoting
Sacramento Newspaper Guild, 263 Cal. App. 2d at 50, 69 Cal.
added.)

Rptr. at 487).

Letter from Jeffrey C. B. Levine, Deputy Corporation Counsel, Department of Law, City of
Chicago

to

Matt Hartman,

Assistant

Attorney

General,

Public

Access

Bureau ( June 26, 2020),

at

3.

 Mr. Mick Dumke

Mr. Jeffrey C. B. Levine
September

11, 2020

Page 6

In its response to this office, the Council stated that it addressed " public safety,
economic recovery, housing assistance, and education initiatives already in effect, as well as
7
general
information regarding the pandemic[ ] [
Footnotes omitted]"
during the calls. The
Council asserted that the purpose of the calls was for theadministration to provide updates on the

City' s COVID- 19 response, receive questions from aldermen, and answer those questions. The
City argued that "[ a] ldermen did not have an opportunity to substantively discuss the
administration officials' remarks, to weigh or examine their proposals, or reach any consensus on
a course of action or decision as a
group. ' 8 The Council also argued that the items discussed on
the call's were not " public business" of the Council under section 1. 02 of OMA.9 The Council
continued to assert that only legislative considerations were the " public business" of the Council,

and that nothing " remotely within the legislative sphere" was addressed during the calls)°
Where the language of a statute is clear and unambiguous, a reviewing body " may

not depart from the plain language by reading into the statute exceptions, limitations, or
conditions

that the

legislature did

not

Hayashi v. Illinois Department of Financial and

express."

Professional Regulation, 2014 IL 116023, ¶ 16, 25 N. E. 3d 570, 576 ( 2014).

Such clear and

unambiguous language should be interpreted without resorting to aids of statutory construction.
In re B. L.S., 202 Ill. 2d 510, 515 ( 2002).

The General Assembly broadly defined " meeting" for purposes of OMA to

encompass all discussions of "public business" attended by a sufficient number of members of a
public

defined

body
as "[

for

a

majority

of a quorum,

or a quorum

for five -member

public

bodies. " Public" is

t] he people of a country or a community as a whole" while " business" is defined as

matters that come before a deliberative assembly for its consideration and action, or for its
with a view to possible
action in the future."
Black' s Law Dictionary ( 11th ed.

information
2019),

Westlaw

BLACKS.

Thus, "

public business" includes not only those subjects
on which that public bodies take action during a gathering, but also the information exchanged
relating to matters that public bodies could potentially act upon in the future, regardless of
available

at

whether action concerning the information is ultimately taken.

Letter from Jeffrey C. B. Levine, Deputy Corporation Counsel, Department of Law, City of
Chicago to Matt Hartman, Assistant Attorney General, Public Access Bureau ( June 26, 2020), at 3.

Letter from Jeffrey C. B. Levine, Deputy Corporation Counsel, Department of Law, City of
Chicago to Matt Hartman, Assistant Attorney General, Public Access Bureau ( June 26, 2020), at 4.

10Letter from Jeffrey C. B. Levine, Deputy Corporation Counsel, Department of Law, City of
Chicago

to Matt Hartman,

Assistant

Attorney

General,

Public Access

Bureau (

June 26, 2020),'

at

5.

 Mr. Mick Dumke

Mr. Jeffrey C. B. Levine
September 11, 2020
Page 7

It undisputed that at least a majority of a quorum of the aldermen on the Council
were present on the conference calls on March 26, March 30, and April 6, 2020, and that issues

concerning the City's response to the COVID- 19 pandemic were discussed during the gatherings.
The Council' s response

to this office stated that no legislative

items were discussed

and no

consensuses was reached during the gatherings. However, as previously discussed, section 1 of
OMA provides that the public shall be given advance notice and the opportunity to attend a
meeting where public business " is discussed or acted upon in any way." It is clear from the
summaries of the calls provided for our confidential review that the purpose of the gatherings

was to discuss the City' s response to the pandemic and to allow the aldermen to express their

thoughts and recommendations on how the response should proceed. Although the mayor may
have informed aldermen of certain unilateral actions that had already been taken and that the
Council would not be acting upon, the City's management of and response to a public health
threat is critical public business of the City. Further, despite the Council' s assertion that nothing

remotely within the legislative sphere" was addressed during the calls,' 1 the Council
subsequently took final action on ordinances related to the pandemic. 12 Therefore, the March 26,
2020, March 30, 2020, April 6, 2020, calls constituted " meetings" of the Council subject to the
requirements

of OMA.

Accordingly, based on the available information, this office concludes that, in
connection with March 26, 2020, March 30, 2020, April 6, 2020, conference calls, the Council
violated: (

an

agenda; (

was

1) section 2. 02 of OMA by holding the meetings without proper posting of notice and
2) section 2. 01 of OMA by failing to hold the meeting at a specified time and place

3) section 2. 06( a) of OMA by failing to keep minutes of the
meeting; and ( 4) section 2. 06( g) of OMA by failing to provide an opportunity for public
that

open

to the public; (

comment.. To remedy this violation, the Public Access Bureau requests that the Council make
available for public inspection copies of the summaries of the March 26, 2020, March 30, 2020,
April 6, 2020, calls.

Letter from Jeffrey C. B. Levine, Deputy Corporation Counsel, Department of Law, City of
Chicago to Matt Hartman, Assistant Attorney General, Public Access Bureau ( June 26, 2020), at 5.

12Journal of the Proceedings of the City Council of the City of Chicago, Illinois, Regular Meeting,
April 24, 2020, at 15041- 45 ( Council passed ordinance 02020- 2356, " Authorization for Various City Departments
to Institute Emergency Measures in Response to COVID- 19 Pandemic.");
Journal of the Proceedings of the City
Council of the City of Chicago, Illinois, Regular Meeting, June 17, 2020, at 17879- 84 ( Council passed Ordinance
02020- 3501, " Establishment of Moratorium on Issuance of Notice of Termination of Tenancy for Failure to Pay
Rent Due to COVID-

19 Impact.").

 Mr. Mick Dumke

Mr. Jeffrey C. B. Levine
September 11, 2020
Page 8

The Public Access Counselor

has determined

that resolution

of this matter does.

not require the issuance of a binding opinion. If you have any questions, please contact me at
217) 782- 9054, mhartman@atg. state. il. us, or the Springfield address on the first page of this
letter.

This letter serves to close this file.

Veryruly yours,

14A

T HARTMAN

Ass stant Attorney General
Public Access Bureau
62981

o

2a meeting

201 location 202

notice

206

minutes

206

pub

comment

improper

mun