ATTORNEY GENERAL ISSUES OPEN MEETINGS ACT OPINION PERMITTING REMOVAL OF AGENDA ITEMS WITHIN 48 HOURS OF MEETING

By Parker Himes

Earlier this month, the Illinois Attorney General (“AG”) issued an opinion on the amendment of the meeting agenda of a public body within 48 hours of the meeting by removing two final action items.  The AG concluded that nothing in the Open Meetings Act (“OMA”) prevents a public body from removing action items from an agenda within 48 hours of a meeting. In fact, the AG noted that a public body is not required to amend the agenda at all within the 48 before a meeting if the public body is postponing or canceling action items.

In the matter forming the basis of the opinion, a board of education amended its meeting agenda within 48 hours of a meeting by removing action items and instead listing them as closed session topics. A Request for Review was submitted after this change, alleging that section 2.02 of the OMA, which requires a public body to post a meeting agenda, continuously, 48 hours before a meeting, prevents a public body from amending an agenda within 48 hours of a meeting. In response, the board explained that, because of a change in circumstances, consideration of two items for final action would need to be delayed.  Further, the board noted that “[i]n an effort to be transparent with the public, we amended the agenda as quickly as we could and posted it on our website, so the public could see that we were not going to take final action on those two matters at this time.”  (Emphasis removed).

In its analysis, the AG concluded that section 2.02 of OMA does not require a public body “to address a matter because it is listed on the agenda.”  As was the case in this matter, the AG noted that a public body may decide that additional information or discussion is necessary, and may consequently postpone or cancel consideration of final action on an item.

The AG also held that the public body “could have decided not to amend the agenda and simply deferred consideration of the two items to a later time.” Since the OMA does not require notice in the agenda of topics to be considered in closed session, a “public body may, without additional notice under Section 2.02, hold a closed meeting in accordance with this Act.”  Remember, however, that the specific subject matter exception(s) must be recited in the motion to enter closed session.

While a public body may remove action items from a meeting agenda 48 hours before a meeting, we caution that a public body would run afoul of OMA by adding action items to an agenda within 48 hours of the meeting. Removal of an action item is not injurious to transparency, but the addition of an action item within 48 hours of a meeting would run counter to the spirit of section 2.02 of OMA, which serves to give the public enough notice (48 hours) to determine whether to attend the meeting.

If you have any questions related to the OMA, please do not hesitate to contact an attorney at the Firm so we may ensure your compliance with the Act.