On March 16, 2020, the Urbana City Council met to discuss and vote on a “Temporary Emergency Ordinance to Address the COVID-19 Virus Pandemic”. Three days before the meeting, Urbana City Attorney James Simon sent out an emergency ordinance proposal to the Urbana City Council for consideration.
Simon’s proposal contained a passage, “Section 4 City Council Meetings”, which declares that Urbana City Council may conduct their business electronically, such as by telephone or video conference. The ordinance also suggests that the public may not have access to meetings or be able to participate in public input. Here is the exact language proposed by Urbana Attorney James Simon:
Simon makes reference to the Open Meetings Act (OMA), which is a state law for public bodies designed to force transparency and accountability. It attempts to achieve this goal by requiring things like open and publicly accessible governmental meetings which must allow for public input. The OMA makes it clear that the members of the public body must be physically present to have a quorum. Simon’s indication that the OMA allows for closed meetings during emergencies is erroneous, as no such provision exists. The OMA only allows for giving the public less than 48 hours’ notice for a public meeting if the meeting is being held as a result of a “bona fide emergency”.
The physical quorum requirement of the Open Meetings Act was lifted by Illinois State Governor JB Pritzker via executive order just hours before Urbana’s March 16th meeting. It is not clear if Urbana staff were anticipating this move when preparing their emergency ordinance. City Attorney James Simon has refused to respond to citizen inquiries on the issue. Pritzker’s executive order does solve the physical quorum problem for Urbana, but Urbana still plans to violate the Open Meetings Act in other ways.
Illinois Press Association attorney Don Craven points out that Pritzker’s order only removed the requirement for public bodies to achieve a legal quorum through physical presence. The OMA still requires that meetings be held in a place which is “convenient and open to the public” and that “any person shall be permitted an opportunity to address public officials” at the meeting. In Craven’s own words:
“He did not suspend the requirement that the meeting be held in a place open and accessible to the public.” “He did not suspend the requirement that the public be allowed to address the board, which means that there has to be a way for the public to participate by phone.”
These issue of holding a physical meeting with public access was raised briefly at Urbana’s Council meeting by only one Council Member. Ward 4 Alderman Bill Brown spoke:
“I’d be very disappointed if we didn’t meet physically. At least, somebody be here. …We have an obligation to the public to be open, and especially in intense situations, we need to show transparency, we need to show clear objectives. And I’d be very disappointed if it wasn’t open, so that anybody could come in and participate in meetings. They wouldn’t have to have a computer, they wouldn’t have to have a special cell phone, they wouldn’t have to setup software. So I’d be very disappointed if we didn’t have a physical presence. I’ll just say as far as the public health aspect: there’s a recommendation of 10 [maximum people per gathering], I understand how that’s calculated, but with the safeguards we have in place here, you have to take into consideration the social distancing that we’re doing that’s proven to be effective. So, I would be disappointed to not have a physical presence.”
The “safeguards” that Alderman Brown described included:
- Adjusting the seating pattern so that all city staff and officials were spaced at least six feet apart.
- Blocking off every other seat in the public seating section to keep people in the audience spaced apart.
- Setting up an automatic hand sanitizer dispenser at the entry door to the chambers
- Sanitizing the desk, chair, and microphone between audience participants.
- Posting notices at the entrance door, information table, and at the public input microphone giving sanitation instructions to the public.
- Stationing the Fire Chief at the back of the chambers to oversee distancing protocols.
- Alderman Eric Jacobsson and Dennis Roberts participated in the meeting electronically from home, presumably because their age puts them in a higher risk category to COVID-19.
One citizen who attended the meeting sent this in an email: “The setup at the Urbana meeting seemed to follow all the recommendations and advice I’ve seen on social distancing. I don’t see why that couldn’t be repeated at future meetings. The only health issues I noticed at the meeting were the police and fire officials who kept whispering into each other’s ears in the back of the room – that’s exactly how COVID-19 gets spread from person to person.”
Bill Brown received no support from his peers to continue holding physical meetings. According to Urbana Mayor Diane Marlin, all future meetings will be held electronically, even if that means the public can’t participate. No attempt by any Urbana official has been made to explain to the public what legal tool gives them the means to adjust the Open Meetings Act laws at the local level.
CU-Underground has received multiple communications from concerned citizens about this issue.