OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS

KWAME RAOUL
ATTORNEY

GENERAL

Junll
Via electronic

29, 2020

mail

Mr. Mick Dumke
Reporter
ProPublica Illinois

mick. dumke@propublica. org
RE:

OMA Request for

Revielw —2020 PAC 62981

Dear Mr. Dumke:

The Public Access Bureau has received the enclosed response to your Request for

Review from the City of Chicago Department of Law on behalf of the City Council of the City of
Chicago.

You may, but are not required to, reply in writing to the public body's response.
If you choose to reply, you must submit your reply to this office within 7 working days of your
receipt of this letter. Please send a copy of yourlireply to the City Council as well.

If you have any questions, please 'contact me at mhartman@atg. state. il.us or the
Springfield address below.

V/

ru y ypu s,

Assistant

Attorney

General

Public Access Bureau
Enclosure

500 South

Second Street, Springfield,

100 West Randolph

Illinois

62701 • (

217)

782- 1090 •

TTY: (

217)

785 - 2771 •

Fax: ( 217)

782- 7046

312) 81473000 •
Chicago, Illinois 60601 • (
TTY: ( 31)
814- 3374 •
Fax: ( 312) 814- 3806
1001 East Main, Carbondale,
Illinois 62901 • ( 618) 529- 6400 • TTY: ( 618) 529- 6403 • Fax: ( 618) 529- 6416
Street,

 Mr. Mick Dumke
June 29, 2020
Page 2

cc:

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

jeffrey. levine@cityofchicago. org

I

 DEPARTMENT

OF LAW

CITY nF CHICAGO

June 26, 2020
Matt Hartman

Assistant Attorney General
Public Access Bureau

Office of the Attorney General
State of Illinois
500 South Second Street
Springfield, IL 62701
RE:

Response to Open Meetings Act Request fo

Review — 2020 PAC 62981

Dear Mr. Hartman:

Thank you for the opportunity to reply to your letter dated June 8, 2020 concerning
informational briefings held on March 26, 2020 March 30, 2020, April 6, 2020, and May 8, 2020.
Your letter references and includes a request for\review, which alleges that the City Council of the
City

of

ground

Chicago ("
that

the

City

Council"),

informational

violated

briefings

the Open

Meetings \ Act, 5 ILCS

constituted "

120 ( the " Act") on the

meetings" under the Act but that the City

Council did not follow the Act' s requirements that attach to " meetings."
I.

INTRODUCTION.

On the dates the briefings took place, the City of Chicago was facing the COVID- 19
pandemic, a public health crisis of unprecedented severity and magnitude. It is no exaggeration to

say that City officials were working around the clock to make and implement emergency plans to
protect residents throughout the City from death or widespread ( disease, and to maintain vital City
disseminate public safety- related information as
widely and as quickly as possible to other City officers who co ld assist in implementing disaster
operations

and

infrastructure. It

was

essential

to

relief and mitigation. As part of this effort, the Mayor . of Chicago and employees in her
administration

hosted

a

series

of conference

calls

for Chicago'

s

aldermen.'

These calls had no

I

Although the host did not conduct a formal sign -in for the briefings, the record of questions asked shows that twentyfive aldermen participated in a March 26 briefing on public safety, thirty-one aldermen participated in a March 30
briefing on COVID- 19 response and nineteen aldermen participated in a second briefing; also on March 30, on the
COVID- 19 Small Business Resiliency Fund (" SBRF") that
to provide pandemic -related assistance,
was

established

sixteen aldermen participated in an April 6 briefing on Chicago Public Schools and nine aldermen participated

in a

May 8 briefing on the Protect Chicago Plan. The participation number for May 8, on that basis alone, should exclude

that briefing from the scope of this request for review because there was not
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legislative aspect whatsoever; rather, their sole purpose was to convey information regarding the
City' s pandemic response to help the aldermen continue to serve effectively in the field as
community- based first responders.
When these facts are applied to the Act, it is clear the briefings were not " meetings" under
the Act because

ii)

body (

none

of

basic

the

in legislative

to engage

for the Act

prerequisites

deliberation

or action (

to

apply — (i)

iii) on

a matter

the convening of a public
of public

business -

took

place in the briefings.
A mayoral

staffer

wrote

detailed sulmmanes

during

the

briefings.

Those summaries,

together with an attestation by .affidavit, are attached to and referenced in this letter, and clearly
show no violation of the Act.
II.

ARGUMENT.

A.

THERE

WAS NO CONVENING OF A " PUBLIC BODY,"

BECAUSE THE

PARTICIPANTS WERE NOT ACTING IN A LEGISLATIVE CAPACITY.
The Mayor arranged and, conducted the briefings, either in person or through staff, in her
capacity as Coordinator, of Emergency Activities, not as presiding officer of the City
Council. The Mayor is " ex officio coordinator of activities in case of
emergency." Chi., 111., Mun.
official

Code §

2- 4- 110. In this capacity, the Mayor is tasked with ffrmulating and executing " plans for

the prevention

of such

emergencies

so

far

as possible

and

for

meeting them

effectively when they

Id.

arise."

Similarly, the aldermen participated inl, the calls as community representatives, not as
legislators. This community -focused role is set forth as a matter of law in the Municipal Code and
is also a long- standing, widely recognized aldermanic function. For example, aldermen aid
constituents with snow removal, tree trimming, graffiti removal, and replacement of residential
garbage

and

recycling

carts.

See Chi., Ill., Mun. Code §

2- 8J050( 23)-( 24).

Aldermen also host

paper .shredding and electronic recycling events, and purchase supplies for local public schools,
parks,

and

libraries. See Chi., I11., Mun. Code §

2- 8-

050( 25)-( 26).

Constituents rely on aldermen

to provide information about and access3 to vital City services. As community representatives;
aldermen must have the most current and relevant information to share with their constituents,
especially during a crisis.

2"

Alderman [

sic]

need

to

be loud

about

following

the [

shelter -

in- place]

older."

Summary of the March 26, 2020

briefing. " An engagement call to action for residents — partnership with Alderman [ sic] will be vital —reopening survey
they' re facing — what kind of amenities do residents want to reopen? What do they need?"
Summary of the May 8, 2020 briefing. ,
to

ask

residents

what

3 " If [an alderman is] aware of constituents with less traditional means of people, please send those people to us
directly." Summary of the March 30, 2020 SBRF briefing. " Aldermen: use your platforms to promote this information
about Chicago Public Schools resources for remote
learning]." Summary of the April 6, 2020 briefing. " If there are

businesses that [ an alderman] would be helpful to hear from, please send that information to [ an administration
official]."

Summary of the May 8, 2020 briefing.

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The Act

dissemination

of public business in the form of legislation, not the

to the deliberation

applies
of

information

emergency

to

public

officials,

serving

as

stewards

of their

communities, to enable them to effectively help their residents cope with a City- wide public health
calamity.

THE BRIEFINGS WERE NOT MEETINGS UNDER THE ACT, BECAUSE

B.

THERE WAS NO LEGISLATIVE DELIBERATION.
1. "

meeting" concerns a legislative body' s legislative deliberation of, or
and does not extend to all discussions of any
upon, legislation,

action

public

I

matter. !

The Act defines a meeting as:
A] ny gathering ...
the purpose

It is
as

the General

importance

to,

discussing

to

interpret

Assembly
or

public

a majority

discussing public

of

essential

of

the core

intended.

otherwise

business"

phrase, "

It does

affecting,
means

of a quorum

of

business ...."

the

the members of a public body held for

5 ILCS 120/ 1. 02.

for the purpose of discussing public business,"

riot simply mean discussing matters of interest or
pulblic.
Rather, in the case of a legislative body,

I

debating orvoting

on actual

or potential

legislation -

no more,

no less. 4 Representatives Katz and Reilly madelthis point clear in a colloquy during the Illinois
House debate on the bill that added the definition of "meeting" to the Act:
Rep.

Katz: " Is the definition of public business confined to matters over which the public

body on which [ its members] serve has some actual authority?"
Rep. Reilly: " Yes."

82nd General Assembly,, House of Representatives, Transcription Debate, May 20,
1981)( pertinent portion of Transcript attached).
Under
actions" (

a

the

Act,

definitive

can

a " meeting"
statement

by

the

be

comprised

as

body

a

of

two components: " deliberations"

whole,

such

as

a

vote).

and

Accordingly, the

universally accepted starting point for analysis is \determining whether legislative debate or a vote
has taken
The Illinois Attorney General' training
that "[ t] he mere presence
place.

of at

least

make

the

a

5

s

majority

gathering

of a quorum

a`

of

meeting,' for

a public

purposes

material

body'

s members

the Act]."

of [

states

at a gathering does not necessarily

What determines whether a gathering

4 " It is the public policy of this State that public bodies existlto aid in the con4uct of the people's business and that the
people have a right to be informed as to the conduct of their business. In order that the people shall be informed, the

General Assembly finds and declares that it is the intent of this Act to ensure that the actions of public bodies be taken
openly and that their deliberations be conducted openly." 5 ILCS 120/ 1 ( emphasis added).

The briefing summaries clearly show that the aldermen did not take any votes during the informational briefings.
Therefore, this response only addresses whether the aldermen engaged in deliberations during the briefings.
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I

is a ` meeting' is the purpose for which the 'public body members gather and what they do once
have

they

I11.

gathered."

Gen.,

Att' y

Open

2020

Meetings

Act

Training,

http:// foia. ilattorneygeneral. net/ Training. aspx ( last visited , une 19, 2020).

The Attorney General has consistently opined that deliberation must take place for a
meeting" under the Act to occur, even before the definition of "meeting" was added to the Act in
1981. Per the Attorney General, to " deliberate" means " to examine, weigh, and reflect upon the
for or against the choice," which " connotes not only collective discussion but the collective
acquisition
and exchange
of facts
preliminary\ to the ultimate decision." I11. Att' y Gen. Op. No. S-

reasons

726

4- 5 ( March

at

22,

1974),

citing Sacramento Newspaier Guild v. Sacramento Cty. Bd. of

Super., 263 Cal. App. 2d 241, 247- 248 ( 1968).
The

Attorney

General'

s

training

material

states

currently

that "[

a] deliberation

in this

context is a discussion aimed primarily at reaching a decision on a matter of concern to the public
body, regardless of whether the discussion will result in the taking of action, will set policy, or is
to

preliminary

I11.

either."

Gen.,

Att' y

Open

2020

Meetings

Act

Training,

http:// foia. ilattorneygeneral. net/ Training. aspx ( last visited June 19, 2020).
Both
affirmed

state

and

federal

this understanding

to

discuss

or

acted

or reach

upon

in

an accord

an open

courts

when

it

in Illinois

with regard

adopt

this

I

analysis. The Illinois Supreme Court

that\"[ t] he Act is

stated

business

to public

only

addressed to 'meetings designed

which properly should be deliberated

forum." People ex rel. Difanis v. Barr, 83 I11. 2d 191, 210 ( 1980).

An Illinois federal district court also applied this analysis to reach the conclusion that no

meeting took place under the Act, at a rally attended by all members of a school board at which
political

matters

Coglianese,
to reach

its

discussed,

were

552 F.

Supp.

because

deliberation

legislative

no

657 ( N. D. 111. Nov. 29, h 1982).

The

occurred.

Nabhani

v.

curt articulated the following factors

There was no examining or weighing of reasons for or against a course
of action, no exchange of facts preliminary to a decision, no attempt to reach accord on a specific
conclusion: "

district business."

matter of school

2.

Id.

at

661.

I

The briefings did not include " deliberations."
I

As the

attached

summaries

clearly

show,'

discourse du

Ing

the briefings

was limited to the

administration' s provision of updates regarding the COVID- 19 response, the receipt of questions

from aldermen, and the direct response to those questions by 4dministration officials. Aldermen
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.

During the question - and -answer periods, aldermen were not given an opportunity to remark upon

or respond to statements made by other aldermen.\
1

Significantly, it is not a violation of the\ Act for members of a public bodyto attend

informational briefings, presentations, or seminars together as a group, even if such gatherings
to the public business of the public body. As
the Illinois Attorney General has advised:

pertain

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Page 5

In theory, there is no absolute prohibition against\ the members of a body attending an
informational meeting" without triggering the application of the Open Meetings Act. The

mere fact that a majority of the members of a public body attend and participate in a bona

in an area of public concern within the
scope of the body' s power to act is not; in my opinion, sufficient to invoke the requirements
fide

of

presentation

the Act. " 95- 004:

Gen.

Op.

legislative

on new

No. 95- 004

Validity
10, (

at

If "a bona fide presentation
is indisputable

that a

bona fide

of

developments

Action Deliberated

Informational

at

Meeting." Ill. Att' y

July 14, 1995).
on new legislative

presentation

ori

developments"

the COVID-

19- related

does not trigger the Act, it
response measures listed in

Section C below, completely unrelated to legislative matters) does not trigger the Act.
C.

THE BRIEFINGS

WERE NOT MEETINGS

THERE WAS NO DISCUSSION
As

have

we

shown

OF " PUBLIC BUSINESS."

public business"

above, "

UNDER THE ACT, BECAUSE

meansrriatters

that lend themselves

to debate

by members of a legislature — iln the words of Representative Katz,
body ... has some actual authority." The briefings at issue did not
remotely approach that characterization. Instead, the briefings were limited to informing and
and

a

reaching

matters

of consensus

over which

the

public

updating the aldermen on the City- wide COVID- 19 response. Administration officials addressed
public

6

safety,

economic

recovery,

housing

assistance,$

and education9 initiatives already in

effect, as well as general information10 regarding the pandemic. There was no presentation or

discussion of new legislative developments, actual legislation, or anything remotely within the
legislative

While

COVID-

19-

emergency

response information is certainly of
paramount importance to the well- being of the public, the dissemination of such information is not
public

sphere.

business"

related

under the Act.

I

I

6 Including protocols for first responders, wellness of elderly, enforcement of health orders, and general operations at
the Chicago Police Department and the Office of Emergency Management and Communications. See Summary of the
March 26, 2020 briefing.

Including the Small Business Resiliency Fund, union outreach, telework policy, and phased reopening. See Summary
of the March 30, 2020 COVID- 19 briefing; see also Summary of the M rch 30, 2020 SBRF briefing; see also
Summary

of the

May

8, 2020

briefing.

1

I

8

Including eviction protection, rental assistance, and emergency shelter. See Summary of the March 26, 2020 briefing;
see also Summary of the March 30, 2020 COVID- 19 briefing.

device

Including plans for remote learning, grading protections,
distribution, food distribution, cleaning protocol,
and training. See Summary of the April 6, 2020 briefing; see also Summary of the March 30, 2020 COVID- 19 briefing.
9

1°

Including statistics regarding the number of COVID- 19 cases and deaths reported in Chicago, hospital capacity,

testing goals, and tracking protocol. See Summary of the March 30, 2020 briefing; see also Summary of the May 8,
2020

I

briefing.
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III.

CONCLUSION.

Under

no

reasonable

construction

can

the

briefings

under

review

be construed

as

meetings" of a public body under the Act. Because the aldermen participated in these briefings

outside of their role as members of a legislative body ands because the briefings fell outside the

scope of the Act both as to format and substance, the Act simply did not apply. To apply the Act
to this situation would both deviate from clear precedent and potentially undermine public safety,
by hindering the rapid deployment of essential government assistance.

I would be happy to address any further questions or concerns on this matter.
Sincerely yours,

effrey C. B./ Levine
Deputy Corporation Counsel
J. L./ soc
Enclosures:

Affidavit regarding the following summaries:
Summary of the March 26, 2020 briefing
Summary of the March 30, 2020 COVID- 19 response briefing

Summary of the March 30, 2020 COVID- 19 SBRF briefing
Summary of the April 6, 2020 briefing
Summary of the May 8, 2020 briefing
Transcript of Illinois House debate

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