OFFICE OF THE ATTORNEY GENERAL

STATE OF ILLINOIS

Lisa Madigan
ATTORNEY GENERAL

August 14, 2017

Via electronic mail Via electronic mail

Via electronic mail Via electronic mail

Via electronic mail

Mr. W. Grant Farrar
Corporation Counsel
City of Evanston
2100 Ridge Avenue
Evanston, Illinois 60201
gfarrar@cityofevanston.org

RE: OMA Requests for Review 2017 PAC 48511, 48512, 48522, and 48543

Dear and Mr. Farrar:

This determination is issued pursuant to section 3. 5( e) of the Open Meetings Act

OMA) ( 5 ILCS 120/ 3. 5( e) ( West 2016)). For the reasons discussed below, the Public Access

Bureau concludes that the Evanston City Council ( Council) violated OMA by failing to provide
the public with at least 48 hours' advance notice of a meeting in the absence of a bona fide
emergency.

On June 29, 2017, three members of the public filed Requests for Review alleging
that the Council violated OMA by scheduling a meeting, first characterized as " special," then as
emergency," for 10 a. m. on June 30, 2017, with less than 48 hours' notice in the absence of a

500 South Second Street, Springfield, Illinois 62706 ( 217) 782- 1090 TTY: ( 217) 785 - 2771 Fax: ( 217) 782- 7046
100 West Randolph Street, Chicago, Illinois, 60601 ( 312) 814- 3000 TTY: ( 312) 814- 3374 Fax: ( 312) 814- 3806
1001 East Main, Carbondale, Illinois 62901 ( 618) 529- 6400 TTY: ( 618) 529- 6403 Fax: ( 618) 529- 6416
Mr. W. Grant Farrar
August 14, 2017
Page 2

true emergency. On June 30, 2017, after the 10 a. m. meeting, a fourth member of the public
filed a Request for Review also alleging that the subject matter of the meeting was not an
emergency.

On July 10, 2017, this office sent the Council copies of the Requests for Review
and requested that it provide a detailed written response to the allegations. On July 18, 2017, the
Council submitted a written response to this office and furnished a copy of its response to each
of the requesters. On July 19, 2017, this office sent each of requesters an e- mail to confirm their
receipt of the Council' s response and to inquire whether they wished to submit a reply to that
response. As of the date of this letter, one requester has submitted a reply.

DETERMINATION

OMA provides that it is 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 2016). Section 2.02( a) of
OMA (5 ILCS 120/ 2. 02( a) ( West 2016)) provides that "[ p] ublic notice of any special meeting
except a meeting held in the event of a bona fide emergency, or of any rescheduled regular
meeting, or of any reconvened meeting, shall be given at least 48 hours before such meeting[.]"
Emphasis added.)

In its response to this office, the Council described the circumstances prior to the
meeting held on June 30, 2017:

On October 5, 2016, the Cook County Commissioners

passed Ordinance 16- 4229, An Ordinance Establishing Earned
Sick Leave in Cook County (" Cook County Sick Leave
Ordinance"). On October 26, 2016, the Cook County Board of
Commissioners passed Ordinance 16- 5768, An Ordinance
Creating a Minimum Wage in Cook County (" Cook County
Minimum Wage Ordinance") to regulate the minimum wage
provisions within county cities and villages effective July 1, 2017.
Cities and villages within Cook County must take legislative action
to opt out of the provisions required by the Cook County
Ordinance. On May 8, 2017, a new Mayor, City Clerk, and City
Council for the City of Evanston were sworn in and the previous
Council did not consider the issue prior to the new Council. As of
Mr. W. Grant Farrar
August 14, 2017
Page 3

June 26, 2017, no similar city or village comparable to Evanston

opted out of the legislation. On June 27, 2017, the Village of
Wilmette voted to opt out of the Cook County Ordinance. On June
28, 2017, the Village of Skokie announced its intention to consider
opting out of the Cook County Ordinance. The legislative
decisions of contiguous municipalities created exceptional
circumstances which necessitated the calling of an emergency
meeting to hear from residents and business owners regarding the
Cook County ordinances. 111

The requester submitting a reply, contended:

Each of the Cook County suburbs that opted out at the last
minute followed the Open Meeting Act meeting -notice
requirements. If [ ]Evanston' s basis for emergency is that they
didn't properly anticipate, follow, or plan for the contingency that
some of the suburbs could opt out, that is simply irresponsible
governance, not an excuse for a bonafide emergency meeting. If
Evanston felt it was urgent to meet prior to the ordinance taking
effect, they should have scheduled this well in advance.
Alternatively, like Skokie, they could have met after the
ordinances were in effect. I21

It is undisputed that the Council did not provide at least 48 hours' advance notice
of its June 30, 2017, meeting as required by section 2. 02( a) of OMA unless the meeting is " held
in the event of a bona fide emergency." OMA does not define the phrase bona fide emergency,
and no Illinois appellate court has addressed the issue of what constitutes a bona fide emergency,
for purposes of section 2. 02( a). An " emergency" is defined as " an unforeseen combination of
circumstances or the resulting state that calls for immediate action." ( Emphasis added.)
Webster' s Third New International Dictionary, 741 ( 1993).

Letter from W. Grant Farrar, Corporation Counsel, City of Evanston, to Neil P. Olson, Deputy
Public Access Counselor, Assistant Attorney General, Public Access Bureau ( July 18, 2017), at 1- 2.

2Letter from to Neil P. Olson, Deputy Public Access Counselor, Assistant Attomey
General, Public Access Bureau ( August 9, 2017), at 2.
Mr. W. Grant Farrar
August 14, 2017
Page 4

Based on this definition, the Public Access Bureau has previously determined that
unanticipated circumstances requiring immediate action that would justify providing less than
48 hours' notice[ ]"
are necessary for a meeting to qualify as one held in the event of a bona fide
emergency. ( Emphasis added.) Ill. Att' y Gen. PAC Req. Rev. Ltr. 23656, issued May 31, 2013,
at 4. In that matter, this office rejected a public body' s assertion that an account deficit that could
have resulted in the public body failing to meet payroll constituted a " bona fide emergency"
under section 2.02( a), partly because the " situation that precipitated" the meeting " was clearly
foreseeable." Ill. Att' y Gen. PAC Req. Rev. Ltr. 23656, at 4; see also River Road Neighborhood
Ass' n v. South Texas Sports, 720 S. W. 2d 551, 557 ( Tex.
App. 1986) (" The term [ emergency]
generally refers to an unforeseen combination of circumstances that calls for immediate action; a
sudden or unexpected occasion for action. The mere necessity for quick action does not
constitute an emergency where the situation calling for such action is one which reasonably
should have been anticipated.") ( internal citation omitted).

The Cook County ordinances were passed in October 2016. The Council clearly
should have anticipated well before June 30, 2017 that it might wish to take action on the Cook
County ordinances prior to their July 1, 2017, effective dates. Assuming that the Council wished
to have the newly elected Council consider the issue after May 8, 2017, there still was ample
time to schedule a meeting in compliance with OMA. Although actions by other municipalities
may have spurred the Council to schedule the meeting, the fact that other Cook County
municipalities would consider the impact of the Cook County ordinances was reasonably
foreseeable. In addition, while it might have been preferable to hold a meeting prior to the
effective date of the ordinances, the Council could have considered the issue on or after the July
1, 2017, effective date. In sum, the Council has not demonstrated that the effective date of the
ordinances was an unforeseen circumstance that needed to be addressed without the 48 hours'
advance notice for a meeting generally required by OMA. Therefore, this office is unable to
conclude that the June 30, 2017, meeting was necessitated by a bona fide emergency.
Accordingly, the Board violated section 2. 02( a) of OMA by failing to provide sufficient advance
notice for that meeting.
Mr. W. Grant Farrar
August 14, 2017
Page 5

The Council has explained that it took no action at the June 30, 2017, meeting.
Therefore, no remedial action for this OMA violation is required. The Public Access Counselor
has determined that resolution of these matters do not require the issuance of a binding opinion.
This letter serves to close these files. If you have any questions, please contact me at ( 217) 782-
9078 or nolson@atg. state. il. us.

Very truly yours,

NEILP. OLSON
Deputy Public Access Counselor
Assistant Attorney General, Public Access Bureau

48511 48512 48522 48543 0 202 notice improper mun