The Illinois Open Meetings Act is designed to give citizens advance notice of all meetings at which any business of a public body is discussed or acted upon in any way. Notices made under the Act should advise the public not only of the date and location of a meeting, but also about the substantive matters that the public body will discuss. The Open Meetings Act thus reflects a public policy expressed by the Illinois General Assembly that state public bodies exist to assist citizens, and that citizens have a right to be informed about what the public bodies are doing. The Illinois Open Meetings Act is thus intended "to ensure that the actions of public bodies be taken openly and that their deliberations be conducted openly." 5 ILCS 120/1.

Among other things, the Act requires public bodies to post an agenda for each regular meeting at least 48 hours in advance of the meeting. 5 ILCS 120/2.02(a). This requirement is obviously meant to inform the public about matters that will be discussed at the meeting. One body ran afoul of this rule by hiding (in the "new business" portion of the posted agenda) a new pension benefit for elected county officers. A court challenge followed, and the trial and appellate courts found that such an important matter should have been previously disclosed in the posted agenda.

The Open Meetings Act was broadly enforced in a recent Illinois appellate court decision that affirmed the grant of summary judgment against members of a county board who had approved a new pension benefit for elected county officials. The Board of Trustees of Adams County, Illinois had posted an agenda for a meeting on November 10, 1998. There were 34 items on the agenda, 25 of which appeared to be reports from various individuals. Agenda item number 32 referred to "new business." The agenda was similar to those used in earlier meetings of the County Board.

During the "new business" portion of that Adams County Board meeting, the Board of Trustees considered and passed a resolution providing for an alternative benefit program for elected county officials, pursuant to the Illinois Pension Code. The pension benefit had not been specifically listed under the "new business" item of the agenda.

Although the Open Meetings Act requires an agenda to be posted 48 hours before a public meeting, the Act also provides that "a regular meeting agenda shall not preclude the consideration of items not specifically set forth in the agenda." 5 ILCS 120/2.02(a). Such a provision is likely a necessary one for public bodies, which must sometimes react to developments that happen within 48 hours of a meeting (after the agenda has been posted).

The Fourth District of the Illinois appellate court found that the term "consideration" used in section 2.02(a) should be construed not as taking action on a matter, but merely as deliberating and discussing items that were not specifically listed in the agenda. This, indeed, would appear to be a plain-language reading of the word "consideration"--it requires only that the body consider something, and not necessarily reach a decision. Using this reading of the statute, the Illinois appellate court found that the "new business" item did not provide sufficient advance notice to the public of a resolution for alternative pension benefits for elected officials. Rice v. Board of Trustees of Adams County, 326 Ill. App. 3d 1120, 762 N.E.2d 1205 (Ill. App. 4th Dist. 2002).

The court's interpretation of "consideration" to mean "deliberation and discussion" may be seen to be a narrow interpretation of the statutory language, at least if that interpretation would work to preclude a body from reaching a decision on a matter that was being discussed. It would seem odd to have a public body discuss an issue, reach agreement in principle about what course of action to take, and then refrain from taking that course of action. Particularly in a social climate where public bodies may be called upon to respond quickly to new developments, and where the public itself is demanding decisive action from its elected officials, there is fear that such a narrow reading of the statute might unnecessarily constrain the public body. On the other hand, it may also often be more prudent for a public body to postpone a decision on a matter until its next meeting.

The court's interpretation of the Open Meetings Act reflects the legislative purpose intended by the Illinois General Assembly, namely that people have sufficient advance notice of the substance of the business of government. This was not a situation where the county board had not posted an agenda at all, or in an untimely fashion. The issue here was simply that it included too much in the section for "new business."

Having sufficient notice is an important right belonging to the people of the state. It is also important for the government bodies themselves--when government bodies reach their decisions after considering public comments on proposal, then the decision reached is more likely to be fully informed and a better decision for everyone involved. Informing the public ahead of time on the substance of matters to be discussed may also make it easier to later enforce rules that may be adopted at that meeting.

The court could, of course, have found a broader reading of the statute had the issue before the county board involved a matter of public safety and security. Recent events reinforce the serious nature of governmental business on so many different levels. But the issue before the Adams County Board did not involve a national or international emergency; it involved new pension benefits for elected county officials. This improved pension benefit is the type of item that can--and should--be disclosed in the public agenda posted 48 hours in advance of the meeting.

What, then, are the lessons to be learned? Lawyers advising public bodies who are covered by the Open Meetings Act should advise those bodies to disclose fully all items that may be brought up as "new business." And lawyers advising citizens groups or particular individuals may find an unexpected route to challenge particular laws that may have been adopted without prior disclosure under the Open Meetings Act.

These lessons may be painful ones at the beginning, but the goal is to create a culture of full disclosure for all items that a public body will consider. Perhaps this goal will need to be recreated after each election cycle. But full disclosure of the business of government will protect the rights of individuals to have that information while also leading to better governmental decisions. The public will not tolerate secret government agendas that violate the statutory rights of citizens to know the business of government in its open meetings.

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* This article was first published in the ISBA's Constitutional Law & Liberty newsletter, April 2002, Vol. 28, No.2, and is reprinted with permission.