Copyright 2022 All Rights Reserved.

August 13, 2022

Shelby County – OMA Violations -What Is and Is Not Legal For Items Not On The Agenda

By Kirk Allen & John Kraft

On August 14, 2020

Shelby Co. (ECWd) –

The Shelby County Board Chairman attempted to take action for things not on the agenda during this week’s meeting.  Only a handful of board members challenged his action with a majority supporting it.  The question we wondered is why would so many board members support an action which is considered a Class C Misdemeanor?

(5 ILCS 120/4) (from Ch. 102, par. 44)
    Sec. 4. Any person violating any of the provisions of this Act, except subsection (b), (c), (d), (e), or (f) of Section 1.05, shall be guilty of a Class C misdemeanor, (which is punishable by a fine of up to $1500 and imprisonment for up to 30 days. 730 ILCS 5/5-8-3, 5-9-1 as outlined by the Attorney General on page 39)

During the initial violation the Chairman was called out for his actions and he ignored the warning, which as expressed, was done in hopes of preventing the board from committing a crime.  We covered it in this article.

This issue is about taking action on something not on the agenda and whether it is legal or not.  A few are arguing it was legal, we will explain why it was not.

5 ILCS 120/2.02 (c) Any agenda required under this Section shall set forth the general subject matter of any resolution or ordinance that will be the subject of final action at the meeting.

Considering there was nothing on the agenda for the action being taken, it would be a violation of section 2.02(c) of the Open Meetings Act.

Those who read the statute and fail to take the next step to see how the courts have applied the law is where people get in trouble on this matter.  Within the Open Meetings Act it states under section 2:

“The requirement of a regular meeting agenda shall not preclude the consideration of items not specifically set forth in the agenda.”

On the surface, people assume they can take action on items not specifically set forth in the agenda but that is not what the law actually states.  Such an assumption is wrong as the courts have explained the term “consideration of”.

Rice v. Board of Trustees of Adams County, Illinois, 326 Ill. App. 3d1120 (Fourth Dist. 2002).

Defendants acknowledge that the alternative benefits program for ECO was not specifically set forth in the agenda. Defendants argue, however, that pursuant to section 2.02 of the Act, “the consideration of” an item not specifically set forth in the agenda references an opportunity for action by the public body. 5 ILCS 120/2.02 (a) (West 1998). We disagree. InCounty of Knox, 188 Ill.2d at 556, 723 N.E.2d at 263, the supreme court opined:

“The fundamental rule of statutory interpretation is to give effect to the intention of the legislature. A court first looks to the words of the statute. The language of the statute is the best indication of the legislative intent. When the statutory language is clear, it must be given effect without resort to other tools of interpretation. In interpreting a statute, it is never proper for a court to depart from plain language by reading into a statute exceptions, limitations, or conditions which conflict with the clearly expressed legislative intent.”

The Act, in setting forth the policy, provides:

“It is the public policy of this State that public bodies exist to aid in the conduct 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.

The General Assembly further declares it to be the public policy of this State that its citizens shall be given advance notice of and the right to attend all meetings at which any business of a public body is discussed or acted upon in any way.” 5 ILCS 120/1 (West 1998).

The Act references the “actions of public bodies” and, in a separate reference, “their deliberations,” and also “business * * * discussed” and, in a separate reference, business “acted upon.” We find “the consideration of” items not specifically set forth in the agenda to be in the nature of deliberations and discussion and not actions taken.

By applying the court’s determination to the written statue it is clear if an item is not on the agenda, there can be deliberations and discussion of the item, but not action taken on the matter.

One thing that might help this board in the future, is for all of those members (six as of the last FOIA) who have failed to comply with the required Open Meetings Act training to do so ASAP.  We understand some members have claimed they are not going to do it and we will follow up with an article dedicated to exposing those Shelby County Board members who refuse to comply with their statutorily required training.

 

SHARE THIS

Share on facebook
Share on twitter
Share on print

RELATED

10 Comments
  • kathiann
    Posted at 11:28h, 14 August

    why would no one not want to take the OMA class? It’s easy and pretty fast. Unless they want to stay uninformed….but maybe that’s the point.

  • Tracey Baker
    Posted at 11:42h, 14 August

    WHY? Easy answer, no one gets punished! Who cares how many times you get called out for these”violation and no matter how many times the AG oversite agrees with complaints how many times are these people prosecuted or at least fined? Except for major acts-near ZERO! Even with the local AG sitting there listening.
    Until we have AG’s willing to prosecute the people will continue to lose. Just like what is going on in Chicago and other big cities where the law is ignored and people go unchecked.

  • Harry Jackson
    Posted at 12:24h, 14 August

    There is some new blood (and I know a couple personally, and they are as good as they come, seriously) coming to the Board soon….and in 2021, we ARE going to cut the number of board members down to 11 from 22.

    I moved here 5 years ago, and naturally those that have been here for generations feel as if, for some reason, their opinion carries more weight. Well…one person, one vote. When you step into yhst voting booth, you don’t have to “go along to get along” you can exercise your gut feeling. I think in teality there are good people who know what works and what doesn’t.

    Look around…are the methods and traditions of the past working as well as they could? Are you happy staying in the past, or does the future hold possabilities to improve those things you’ve always wished were different?

    Dare to embrace progress, and supress the ignorance that has been so prevelant for so long. It doesn’t have to continue. Refuse to accept the staus quo. There are people that have EVERYONE’S best interests in mind (and heart).

    In a day and age when people elevate politicians for their candor and outspoken nature….if their message is intolerance and pure ignorance, such as we have seen often in meetings of late, then perhaps it is left buried.

    Bottom line is, EVERYONE who is qualified should make it priority number 1 to get out and vote.

  • Marilyn G.
    Posted at 12:52h, 14 August

    Tracey Baker : You stated my feelings , EXACTLY. THANK YOU !!!!!!

  • Mags
    Posted at 15:20h, 14 August

    They all get extensive training on Open Meeting’s Act according to the Attorney General’s office. And yes – the reason they so blatantly violate it is because nothing happens to them. They might get a slap on the wrist but that is it. Our State’s Attorney’s are not doing their jobs. They are all in the Club and protect each other. We truly have a lawless society when it comes to holding elected officials and Government Bodies accountable. Drain the Swamp!

  • PK
    Posted at 16:45h, 14 August

    When the chair deviated from the agenda, the state’s attorney did not speak up. She did not speak up for the OMA nor the board she purportedly serves. As near as can be, she did not even speak up for her registry. Unchallenged by public concern for adhering to the OMA, the chair said, “I’m gonna do it anyway” then did so. By way of her silence, the state’s attorney indirectly approved the conduct.

    • Harry Jackson
      Posted at 18:15h, 14 August

      Did anyone consider at that moment, or those few moments, right or wrong…she was simply distracted?

      Trouble is….she and the chairman are both outgoing. They will likely never return. How much do you think they really care about protocol, and doing the correctnthing? Especially this late into the game….(and down 42-12)?

      We need to make big changes, and stop doing things the way they’ve always been done, and start doing them the right way.

      • PK
        Posted at 23:14h, 19 August

        At least one other reader following Shelby Co. (ECWd) news has done so.

        A working payroll system has been installed.
        The state’s attorney has a line item to budget for help. Cannon won’t be quick to demand an elected official “shut-up” nor will he have open claim to compensation for meetings that did not occur.

        Otherwise, adherence to the OMA with measured strive for the Counties Code seem like a pretty good start.

  • Justice Seeker
    Posted at 07:26h, 15 August

    Marilyn and Tracy, you are spot on. This state statute says it clearly. You can read it in its entirety at ilga.gov. The site is easy to navigate. It references 720 ILCS 5/33 which is the criminal code of 2012 and addresses official misconduct by elected and appointed officials. It is past time taxpayers see justice and restored faith in the justice system. Maybe it is time to see if Tom Devore would like to handle a class action lawsuit for the taxpayers of Shelby county!

    (5 ILCS 282/10)
    Sec. 10. Purposes. The General Assembly finds that it has compelling governmental interests in: (1) preventing criminals from profiting from their crimes, and (2) ensuring that the victims of crime are compensated by those who harm them. Further, the General Assembly finds that the unlawful or deceitful actions of elected officials can erode the public’s confidence in its government and debase the public’s belief in a fair democratic process.
    (Source: P.A. 96-597, eff. 8-18-09.)

    The more taxpayers are equipped with the law the stronger the army. Greater chance for victory!

  • Your time will come
    Posted at 15:11h, 18 August

    We are former SC residents and have some personal dealings w/different professionals in your town right now and we’ve decided your county has turned into a small crook county. Many things unless your involved in you all will never know about but are very disturbing, hinging on illegal that should b prosecuted. I hope Those involved might see this
    Post, and time will tell.

$