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People Ex Rel. Difanis v. Barr





APPEAL from the Circuit Court of Champaign County; the Hon. ROBERT J. STEIGMANN, Judge, presiding.


The State's Attorney filed this action under the Open Meetings Act (Ill. Rev. Stat. 1977, ch. 102, par. 41 et seq.) to obtain a declaratory judgment that members of the Urbana city council may not meet in closed session to discuss city council business. According to the facts stipulated by the parties, an Urbana city council meeting was scheduled for Monday evening, October 23, 1978, at 7:30. The preceding Friday, two of the defendants decided that they should hold a caucus for Democratic members of the city council a few hours before the scheduled meeting. The caucus was set for 6 p.m. on October 23, 1978, and eight of the nine Democrats on the city council, along with one independent member, attended. The press did not receive notice of the caucus, and the public was not invited. Issues on the agenda for that night's city council meeting as well as issues not on the agenda were discussed at the caucus. The defendants stipulated that they have had these meetings in the past and will continue to do so unless this case holds otherwise. The Urbana city council has 15 members, with a quorum requiring the presence of 8 members.

The trial court ruled that the October 23, 1978, caucus violated the Open Meetings Act, that political caucuses are not exempt from the Act, that the Act is constitutional, and that the Act must be complied with whenever three or more members of the Urbana city council meet to discuss city council business.

• 1 The Open Meetings Act declares as public policy that meetings and deliberations of public bodies should occur in the open, rather than behind closed doors. The first section of the Act explicitly states this policy:

"It is the public policy of this State that the public commissions, committees, boards and councils and the other public agencies in this State exist to aid in the conduct of the people's business. It is the intent of this Act that their actions be taken openly and that their deliberations be conducted openly." (Ill. Rev. Stat. 1977, ch. 102, par. 41.)

The second section of the Act states the extent of the application of the Act to the meetings of different public bodies:

"All meetings of any legislative, executive, administrative or advisory bodies of the State, counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees or commissions of this State, and any subsidiary bodies of any of the foregoing including but not limited to committees and subcommittees which are supported in whole or in part by tax revenue, or which expend tax revenue, shall be public meetings * * *. This Act does not apply to the General Assembly or to committees or commissions thereof." Ill. Rev. Stat. 1977, ch. 102, par. 42.

At the beginning of the fiscal or calendar year, bodies subject to the Act must publish a schedule of the year's meetings and provide public notice of the schedule by posting a copy at the body's office, or if none, at its regular meeting place; the schedule of meetings must also go to newspapers and radio and television stations that have filed an annual request for such notice. For special, rescheduled, or reconvened meetings, the body must notify the public at least 24 hours in advance and the media in the same manner that members of the body are notified. (Ill. Rev. Stat. 1977, ch. 102, pars. 42.04, 42.03.) Furthermore, meetings must be held at places and times convenient to the public. Ill. Rev. Stat. 1977, ch. 102, par. 42.01.

The State argues that the Open Meetings Act requires that the so-called caucuses of the Democratic members of the city council take place in public and be open to the press and the public. The defendants argue that the Open Meetings Act does not apply to political caucuses. The Act does not define the word "meeting."

The leading Illinois case on the Open Meetings Act is People ex rel. Hopf v. Barger (1975), 30 Ill. App.3d 525, 332 N.E.2d 649. In Hopf, two members of the five-member city council, the city attorney, the city manager, an attorney, and an owner of land met privately to discuss the sale of a parcel of land to the city council. Hopf ruled that the meeting was held in violation of the Open Meetings Act, and that the Open Meetings Act applies even when fewer than a quorum are present.

In Sacramento Newspaper Guild v. Sacramento County Board of Supervisors (1968), 263 Cal.App.2d 41, 69 Cal.Rptr. 480, an appellate court applied the California sunshine law, called the Brown Act, to a private meeting held by five county supervisors, counsel, the county executive, the county director of welfare, and several members of the area's central labor council. This group had met at the local Elks Club to discuss a strike by the social workers' union against the county. Like the Illinois sunshine law, the California version did not then and still does not define the word "meeting." In holding that the meeting had violated the Brown Act, the court in Sacramento said that interpreting the word "meeting" to decide what deliberations fall within the scope of the law requires analysis of the statute's objective and the nature and purpose of the gatherings and meetings covered by the legislation.

In News-Journal Co. v. McLaughlin (Del. Ch. 1977), 377 A.2d 358, a Delaware court ruled that under that State's sunshine law the plaintiff-newspaper had the right to attend closed meetings held by certain members of the Wilmington city council. As in this case, the defendants in News-Journal Co. called their meeting political. Several hours before a scheduled city council meeting, the 11 Democrats on the 13-member council met privately with the Democratic mayor and city clerk; the court recognized that attendance at the meeting was obviously based on political affiliation. The purpose of that meeting was to discuss the possible repeal by the State legislature of a law authorizing the city to tax local wages, and the mayor said that the meeting was called to inform the other Democrats on the council of the progress of the repeal measure and to seek their support against the repeal. The News-Journal Co. court rejected the defendant's argument that their meeting was only a political strategy session and therefore not subject to the Delaware sunshine law, viewing this characterization of the meeting as a ruse designed to evade the purpose of the law. The defendants also argued that their meeting was outside the scope of the sunshine law because they did not discuss public business. The Delaware law defines public business as matters over which the body in question has "supervision, control, jurisdiction or advisory power." The defendants contended that because they had no control over what the legislature did, the closed meeting was not a discussion of "public business." The court interpreted the definition broadly and said that with repeal of the wage tax authorization, Wilmington would be pressed to find another source of revenue. The close connection of the topic discussed with city finances made the subject one of "public business."

• 2 Illinois has a great affinity for creating governmental bodies to conduct business: according to the State Board of Elections, in 1978, we elected 40,457 of our citizens to government positions. This number alone suggests not just high cost and minimum efficiency but also a penchant for conducting public affairs in a fish bowl. One who aspires to public office chooses the center ring for his deliberations. If the public officer cannot stand the attention and limelight of the center ring, he should remember that although serving in public office may be hard, departing from the public scene is easy. The purpose of the Open Meetings Act is clear and unambiguous. The people's representatives must meet openly, or else the people risk having their business done in secret, with the possibility that private deals will supplant the public interest. Characterizing a meeting as a political caucus should not distract attention from the real purpose of the meeting. In this case, the stipulation of facts does not list party business as one of the subjects discussed at the meeting. All the subjects listed are properly business of the city council, and some of the subjects discussed were in fact on the agenda for the council meeting that night.

A number of Illinois cases interpreting the Open Meetings Act should be distinguished. In these cases, either the facts were different from here, or the court did not give full play to the scope and intent of the Act. Lurie v. Village of Skokie (1978), 64 Ill. App.3d 217, 380 N.E.2d 1120, interpreted the word "deliberations" too narrowly when it ruled that private ...

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