Municipal Law Q&A
In a village with a president and six trustees,
the vote to approve an ordinance authorizing the execution of an annexation
agreement is 3-yes, 2-no and 1-absent. Does the president vote? Does the
ordinance pass?
ANSWER: The village president votes because half of the board has voted
in favor of a proposition, but there is no tie, however the ordinance fails
because an ordinance to approve the execution of an annexation agreement
requires at least the two-thirds vote of the corporate authorities, which
in this case, would require five votes. (65 ILCS 5/11-15.1-3) It is important
for elected officials to know those instances in which an extraordinary
majority vote is required. These items are listed in the Illinois Municipal
Handbook at pages 108-115.
Can an elected official in his or her full or
part-time occupation sell a product or a service to a contractor who does
business with the municipality?
ANSWER: Although, except for certain limited circumstances, elected municipal
officers cannot do business directly with the community they serve, they
can do business with individuals and companies which do business with the
community. If the person is an elected officer and feels that his or her
vote would be influenced by that relationship, he or she may abstain and
describe the reason for the abstention. What an officer cannot do, however,
is participate in or enter into any pre-arrangement to sell a product or
service when it is known that the officer will only get to provide the product
or service if the community enters into a contract with a particular bidder
or applicant. Such an activity would constitute an illegal and criminal
conflict of interest..
Fifty citizens show up a plan commission meeting
to object to a development. Someone notices that the published public notice
was invalid. Can the formal meeting continue?
ANSWER: If this was a regular meeting of the plan commission, the meeting
could continue with the members of the plan commission merely hearing public
comments on the proposed development. If this was a special meeting, called
for this purpose, no formal meeting could take place, but the plan commission
members could simply initiate a public forum to listen to the comments from
citizens. In either case, a new properly noticed hearing would have to be
scheduled because an ordinance, which requires a prior public hearing is
not valid unless that hearing is held.
Can a mayor remove an appointed officer in the
middle of that officer's term?
ANSWER: Yes. Except where otherwise provided by statute, a mayor may
remove an appointed officer on any formal charge prior to the end of that
officer's term whenever the mayor believes the interest of the municipality
demands removal. If the mayor, after removing an officer, fails or refuses
within a designated time to report to the council the reasons for the removal,
or if the council disapproves of the removal by a two-thirds vote of all
of its members authorized by law to be elected, then the officer is restored
to the office. (65 ILCS 5/3.1-35-10)
A motion to award a $100,000.00 contract for
the renovation of city hall council chambers to the lowest responsible bidder
receives a 4-4 vote from the eight aldermen on the city council. Must the
mayor vote?
ANSWER: Due to the ambiguous language in Section 3.1-40-30, it would
appear that the mayor may vote in case of a tie but is not required to do
so. If the mayor votes to approve the contract, it is binding. If she refuses
to vote or votes against acceptance, there has been no contract award.
The same council, wishing instead to award the
contract to the second lowest bidder, votes 4-3 (and one abstention) to
reject all bids. A motion is then made to award the contract to the second
lowest bidder and it receives a 5-3 vote. Is the contract valid?
ANSWER: If the city is home-rule and has its own ordinance, it may, provide
for the award of contracts based upon the public interest and not just to
the lowest responsible bidder. Sometimes, however, this may discourage bidders
if they think the award will be made upon some non-objective basis. Thus,
the city could vote simply to award the contract to the second lowest bidder.
If the city is not home-rule, it can reject all bids by a simple majority
of the quorum vote (4-3) and then award a contract without bidding provided
there is a 2/3 majority vote of aldermen or trustees holding office, that
being six out of eight aldermen. Once all bids are rejected, however, no
prior bidders can be automatically held to a former quote until they agree
to it in writing. (Sec.5/8-9-1.) In this instance, the vote of 5-3 would
be insufficient to approve the award of a contract to the second lowest
bidder. In either case, the council can also vote to negotiate a lesser
price--but not any changed specifications--with the low bidder only. (720
ILCS 5/33E-12.)
The Village of Ancelville has a highly politicized
Board of Trustees, only three of whom are aligned with the Village President.
After almost every executive session, the substance of what was discussed
behind closed doors makes its way either to the newspaper or into the hands
of the Mayor's political opponents. After months of trying to identify the
"leak," it is admitted by one of the Trustees that she has been
passing information about closed sessions on to the newspaper and her political
allies because, in her opinion, all government must be open to the public.
The Mayor and his loyal Trustees want to kick Trustee Loudmouth off the
Board. Can they accomplish this result? If not, what options are available
to them?
ANSWER: There is no mechanism in the Illinois Municipal Code for either
a home-rule or non-home rule community to "impeach" an elected
member of the Board. At least one case has ruled that the Open Meetings
Act does not offer any remedy or even provide a cause of action against
a member of a public body who discloses information discussed or revealed
during a closed session, thus making punishment of such acts by the governing
bodies difficult, though not impossible. Communities can consider an application
to the State's Attorney for a malfeasance prosecution or a court order seeking
an injunction against the member who is leaking confidential information.
The State's Attorney can bring criminal proceedings against any person who
violates the provisions of the Open Meeting Act. Upon conviction, a person
can be sentenced under a Class C misdemeanor, fined up to $500.00 and imprisoned
for up to 30 days. The public body could also "censure" the offending
member through an appropriate resolution. While the finding would have little
effect, the political or public relations ramifications may be significant.
65 ILCS 5/3.1-40-15 also permits a municipality to punish its members for
disorderly conduct.
In the Village of Ancelville, one of the Trustees
just recently elected just doesn't seem interested in attending meetings.
While the Trustee regularly speaks out in the newspaper or at public forums
about the business of the Village, mostly being critical, he fails to attend
most regular and special Village Board Meetings. In the six months since
he has been elected, he has missed eight of the 12 regular meetings and
two of three special meetings. The other members of the Board are livid
at this lack of attention to attending meetings. What can they do?
ANSWER: While the Village Board cannot remove the Trustee from office,
the Municipal Code does give some possible sanctions. A Village Board may
compel the attendance of absentees under penalties prescribed by the Board
by ordinance. These penalties may include a fine for a failure to attend
a regular or special meeting. See 64 ILCS 5/3.1-40-20. The Village Board
may ask the States Attorney to call the official and suggest that continued
absences could result in a prosecution for nonfeasance of office.
The Village President wants to make a number
of appointments to various Village Boards and Commissions. Some of these
appointments merely reappoint the incumbent members but a number of the
appointments are new members. Various Trustees object to these appointments,
not so much because they oppose the individual, but more because they don't
know many of the individuals being appointed and want to discuss the qualifications
of the various individuals to serve in the suggested capacities. One of
the Trustees asked the Village Attorney whether the qualifications of these
individuals is a proper subject for a closed session under the Open Meetings
Act or must the discussion take place in open session?
ANSWER: One exception to the Open Meetings Act is to allow a public body
to discuss "the appointment . . . discipline, performance or dismissal
of specific employees of the public body . . ." (italics added)
A second exception includes "the selection of a person to fill a public
office as defined in this Act, including a vacancy in a public office, where
the public body is given power to appoint under law or ordinance . . ."
Under either provision, therefore, it appears a discussion concerning the
qualifications of such appointees can be held in closed session. Interestingly,
this may not be true for purely informal advisory positions where those
individuals cannot, under any definition, be considered in an "employer-employee"
relationship or exercising any portion of the sovereign power of the public
entity.
Three trustees are at their individual homes
surfing the Net. They all eventually end up in a chat room connected with
their Village's web site. Can they participate in a conversation in the
chat room without violating the Open Meetings Act?
ANSWER: Not if the purpose of the chat room is to discuss public business.
While the issues related to electronic technology and the Sunshine Laws
continue to evolve, it is likely that such a practice would violate the
Illinois Open Meetings Act, which defines a "meeting" as a gathering
of a majority of a quorum held for the purpose of discussing public business.
5 ILCS 120/1.02. While at least one state has held that the "physical
presence" of the participants was essential to constitute a meeting,
(Roanoke City School Board v. Times-World Corp., 307 S.E.2d 256 (1983)),
Illinois courts have been more expansive in defining what constitutes a
meeting. Freedom Oil Company v. Illinois Pollution Control Board,
275 Ill.App.3d 508 (4th Dist. 1995). For an additional discussion, see the
Illinois Municipal Handbook, pp. 75 - 88.
In a Village with a president and six trustees,
the mayor and three trustees attend a board meeting. During the meeting,
a trustee storms out of the board room and goes home to prevent a vote on
a matter. Is the trustee successful in preventing a vote on a matter at
that meeting?
ANSWER: Yes. The Illinois Municipal Code provides that a quorum (a majority
of the corporate authorities) is required to conduct business. A quorum
of the body must be present no only to begin a meeting, but also at the
time of a roll call vote on any proposition. When less than a quorum remains
at a meeting, business must be suspended. Any actions taken without a quorum
are void. While this Village had a quorum when the meeting started, the
trustee's departure created a lack of a quorum, thereby preventing any further
business at that meeting.
A City Council (with one mayor and seven aldermen)
generally uses an omnibus vote procedure. At one meeting, Alderman Ancel
makes a motion to establish a consent agenda, which passes unanimously.
The consent agenda consists of five ordinances. When the vote is taken on
whether to approve the items on the consent agenda, 4 aldermen vote for
its passage, and three of the corporate authorities including Alderman Ancel
and Mayor Glink vote against it. Does the motion pass or fail?
ANSWER: The motion passes. By unanimous consent, the corporate authorities
may agree to take a single vote by yeas and nays on the question of the
passage of two or more designated ordinances, orders, resolutions or motions.
These several items which have been placed together for voting purposes
are to be entered into the minutes under the designation "omnibus vote"
after which the names of the members and their vote on the total package
of items is to be recorded. Although the vote to establish the omnibus vote
or consent agenda must be unanimous, the single vote on the items themselves
need not be unanimous. There is no requirement that the alderman who makes
the motion to establish the consent agenda support all of the substantive
items on the agenda. The alderman could be in favor of taking one vote on
the items and against the actual items. For more information on omnibus
voting, see p. 117 of the Illinois Municipal Handbook.
The Village of Diamondback has traditionally
had raucous Board meetings. While the population of the community is only
5,000, at least 200-300 people generally turn out for regular Board meetings.
For years, the Board meetings have been held in the school auditorium because
the Village Hall meeting room is insufficient to hold all the people who
regularly attend. At one Village Board meeting, during public comment, a
citizen stands up and spends a substantial period of time verbally berating
the performance of the Mayor and several Board members. The Mayor finally,
fed up with this tirade, orders the police officers in attendance (of which
there are many) to remove the individual from the chamber. While some in
the crowd applaud the move, has the Mayor created an unnecessary liability
for himself and/or the Village?
ANSWER: There is no right under the Illinois Municipal Code or Roberts
Rules of Order for there to be public comment at a regular or special
Board meeting. It is up to each corporate authority to determine whether,
as part of their meetings, there shall be public comment. Some communities
have public comment near the beginning of the meeting on agenda items only,
some communities allow public comment interspersed throughout the Board
meeting on various agenda topics, while other communities have public comments
at the end of the meeting. Few communities allow no public comment whatsoever.
Having permitted public comment, the Village Board of Diamondback must "sit
and take it." Each member of the public has a First Amendment right
to say what he or she thinks about the performance of the elected officials.
Unfortunately, by ordering the citizen to be removed from the proceedings,
the Mayor has exposed himself and the Village to a Federal civil rights
claim wherein the citizen can assert a violation of his First Amendment
rights. If the community wants to end public comment, it should probably
make this change by ordinance and it must apply it universally and not just
to political opponents.
An alderman who has had a personal run-in with
the police chief falsely accuses the chief of taking bribes from street
gang members. The alderman makes this statement at a council meeting called
to discuss the police chief's salary and later repeats the statement at
a political rally. Can the alderman be successfully sued for her statements?
ANSWER: The alderman is immune from suit regarding the comments made
at the city council meeting even if the statements are false and hurtful.
The statements made outside of the legislative process are likely to result
in a successful lawsuit against the alderman. An insurance company providing
coverage for the community may refuse to defend or pay a judgment against
the alderman arguing that the acts were part of a personal vendetta rather
than part of the elected official's duties.
The President of the Village of Discordia, with
the Board's approval, has appointed a purchasing agent to fill the newly
created office. After six months of excessive spending by the Purchasing
Agent, the Board votes 4-2 to eliminate the position immediately and assign
the duties of the purchasing agent to the Finance Director. The Board consists
of six Trustees and the President. Was this action proper?
ANSWER: No. Pursuant to §3.1-30-5, a 2/3 vote of the corporate authorities
is necessary to eliminate an office; therefore, five votes are required.
If the President had voted as the statute allows and may require, the vote
might have been 5-2 and successful. Such an action would have to be by ordinance,
to take effect at the end of the fiscal year.
Can a citizen bring a video-tape recorder to
village board meetings?
ANSWER: Section 2.05 of the Open Meetings Act addresses the question
of the public's right to record the proceedings of public meetings. While
citizens can use tape, film or "other means," the public body
may establish "reasonable" rules of procedure governing the use
of such equipment and may also prohibit certain kinds of recordings if individuals
who are testifying represent that they do not wish to be so recorded. These
restrictions are reasonable since they do not interfere with a citizen's
right to attend and, where allowed, participate in public meetings or to
take notes of those meetings.
Can a citizen demand the tape recording of a
meeting between a developer and the mayor or of a closed session?
ANSWER: No. The meeting between the developer and the mayor is not governed
by the Open Meetings Act, and the executive session is not accessible to
the public, although once minutes or any recordings of such meetings are
"released," they could be available to the public.
At a regular Village board meeting, the board
votes to reconvene the meeting for the next afternoon. The original meeting
was properly posted and noticed. While the Village board announced at the
original meeting the time and place of the reconvened meeting and planned
to consider the same agenda, no notice was posted and the registered new
media were not given notice. Does the meeting violate the Open Meetings
Act?
ANSWER: No. No notice of a reconvened meeting need be given if the original
meeting was open to the public and it is to be reconvened within 24 hours
or if an announcement of the time and place of the reconvened meeting was
made at the original meeting and there is no change in the agenda. However,
if these conditions are not met, then notice must be posted and given to
the registered news media at least 48 hours before the reconvened meeting.
An agenda must accompany the notice. 5 ILCS 120/2.02. For an additional
discussion of notice procedures for special, emergency, reconvened or rescheduled
meetings, see p. 78 of the Illinois Municipal Handbook.
Following a heated debate over how it could
increase tourism, a Village Board passes an ordinance declaring that the
Village's motto is "The Home of the Blair Witch." At the next
regular meeting, the mayor vetoes the ordinance by signing on the ordinance
the words "vetoed on this 23rd day of September, 1999" followed
by her signature. She provides no written reasons for the veto indicating
what objections she has to the ordinance. Is the veto valid? Is the ordinance
valid if the mayor refuses to sign it at all?
ANSWER: The signed veto message is sufficient to veto the ordinance.
The Municipal Code specifies that, to veto an ordinance, she "shall
return [it] to the city council, with [her] written objections, at the next
regular meeting of the city council occurring not less than 5 days after
[the ordinance's] passage." 65 ILCS 5/3.1-40-45. The requirement that
the mayor return "written objections" does not mean that "reasons"
for the veto must be returned in writing, but only that the fact that the
veto was made must be reduced to writing. If, however, the mayor refuses
to sign the ordinance at all within the designated time, it shall become
effective despite the absence of the mayor's signature. For an additional
discussion of mayoral vetoes, see pp. 121 - 123 of the Illinois Municipal
Handbook.
In the Village of Ancelville, a Trustee who
is politically in the minority becomes upset at a Board meeting about the
manner in which business is being conducted. The Trustee, obviously disgusted,
gets up, slams his materials to the desk and announces, "I quit."
This statement is made loudly enough so that all the Trustees and members
of the audience hear the comment. Also, the proceedings are being televised
to the community and the comment is clearly picked up on the audio portion
of the broadcast. The next day, the Trustee, with some embarrassment, sends
a letter to the Village Manager and President asserting he was merely frustrated
over the Board's proceedings and did not truly resign from the Board. Can
he rescind the resignation?
ANSWER: The answer here depends on a reasonable interpretation of what
the Trustee did at the meeting. To be effective, a resignation of an elected
official does not need to be in writing nor must it be accepted by the public
body. However, it must be a true expression of resignation and not one merely
of political frustration. In this instance, the Trustee would likely be
found to not have resigned from the Board and could retain his seat.
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