For many years, Ancel, Glink attorneys have appeared at the conference of the Illinois Municipal League and of the Municipal Clerks of Illinois. Often our attorneys present papers and other materials at those conferences which we post here for downloading. These materials generally take the form of questions and answers. Set out below are the materials from the 2008 conferences.


by Stewart H. Diamond, Derke J. Price, Robert K. Bush, Julie A. Tappendorf and Keri-Lyn J. Krafthefer

QUESTIONS AND ANSWERS ON PROCEDURES AND PRACTICES

1. Is it proper for the Chair of a Zoning Board of Appeals to place a time limit on individual comments at a public hearing? For example, can the chair impose a five-minute per person time limit?

A. It is not a bad idea for a Zoning Board of Appeals or a Plan Commission to develop procedural rules which establish a time limit on individual comments at a public hearing. In the absence of such rules, the Chair can establish a reasonable time limit for speeches to address the public body. A period of five minutes per person for individual comments at a public hearing is quite reasonable. Actual called witnesses who appear before a ZBA or a Plan Commission may well testify for an extended period of time, although even here, the person in charge of the hearing can attempt to limit repetitive questioning or material that is not pertinent to the subject to the public hearing. It would be quite permissible for the Chair to establish rules such as alternating persons in favor of or opposed to an application, or requiring that no person speak more than once until all other individuals have a right to present comments.

2. Must a Zoning Board of Appeals retain a court reporter to transcribe zoning public hearings?

A: In very few Illinois municipalities, the Zoning Board of Appeals is given the authority to actually determine whether zoning variances are to be given. In that case, the proceedings before the ZBA should always be transcribed by a court reporter for use in the possible appeal to the Circuit Court. The applicant for such a variance can be required to pay the cost of the court reporter. For all other hearings before the Zoning Board of Appeals, or the Plan Commission, the decision of those bodies is only advisory to the Corporate Authorities. Appeals from the decision by the City Council or Village Board to the Circuit Court level will be decided by new testimony rather than a transcript of the public hearings. Some municipalities are prepared to generally pay for a transcript so that the Village Board or City Council will get a full understanding of the material presented to the recommendatory bodies. While this may be an appropriate expenditure of public funds, it is certainly not required by law. Adequate minutes of the presentation before the advisory bodies should be taken, and the reports and decision from the advisory bodies should give the Corporate Authorities adequate information upon which to decide whether or not to pass an ordinance, and what the contents of that ordinance should be.

3. Can a Zoning Board of Appeals or Plan Commission go into executive session to discuss a pending zoning application?

A: A Zoning Board of Appeals or Plan Commission, like any other unit or sub-unit of a municipality, has the ability to go into executive or closed session, but only to discuss items which legitimately fall under one of the exceptions to the Open Meetings Act. One exception often used to go into closed session is "Litigation." It must be remembered that the Open Meetings Act goes beyond the shorthand category of "litigation," and requires that "an action against, affecting or on behalf of the particular public body has been filed and is pending before a court or administrative tribunal, or when the public body finds that an action is probable or imminent…." The Open Meetings Act goes on to state that where "litigation is the reason for going into the closed session, the basis for the finding shall be recorded and entered into the Minutes of the closed meeting." Since it is possible that any matter before a Plan Commission or Zoning Board of Appeals may result in litigation, it is important for that body to remember that under the Open Meetings Act litigation must either be filed or "is probable or imminent."

4. A zoning public hearing has been properly noticed and scheduled for a meeting of the Plan Commission. However, the Plan Commission does not have a quorum in attendance at that meeting. Can public testimony be taken notwithstanding the lack of a quorum?

A: No public body in Illinois may meet if it does not have a quorum. Public testimony cannot be taken if a quorum is not present. Individuals who may not be able to attend subsequent meetings can be told that the Plan Commission will receive written comments from them, or that they can attend the follow-up meeting.

5. Can the Plan Commission conduct the statutorily-required public haring on an annexation agreement at the same time it conducts the zoning hearings for the same territory?

A: This is something of a trick question. A Plan Commission can conduct a hearing involving various requests made by the owner of a parcel of land. In some communities, the Plan Commission and Zoning Board of Appeals have been combined. In that case, the Plan Commission/Zoning Board of Appeals can hold a joint hearing with regards to requests for special uses, variances and even amendments to the text of a zoning ordinance. The Plan Commission cannot, however, hold the required public hearing regarding an annexation agreement. The Plan Commission can hold a public hearing about the portion of the annexation agreement that relates to zoning, but the public hearing required, under 65 ILCS 5/11-15.1-3, on "annexation agreements and all amendments to annexation agreements," can only be conducted by the Village Board or City Council itself.

6. What can a governmental body do if no quorum is present?

A: Very little. For some governmental bodies, like municipalities, the statutes provide that: "A smaller number, however, may adjourn from time to time and may compel the attendance of absentees under penalties (including a fine for failure to attend) prescribed by the council by ordinance." (Act, §5/3.1-40-20). Other governments may be able to take similar actions by including such a provision in their rules of procedure. Unfortunately, going on with a meeting with a majority of a quorum present, but no actual quorum, violates the Open Meetings Act. The Open Meetings Act applies not only to the corporate authorities of governmental bodies, but also to their committees and subsidiary bodies. Where less than a quorum is present and there are citizens who wish to address the public body, it is probably permissible–and certainly practical–to tell the members of the public that you will be happy to listen to their comments but that you will do so as private citizens. In order to incorporate their comments into the actual record, they would need to come to the public meeting at which their item of interest is being discussed. They may also be told when the matter will be discussed again and if they are sure of the new date, they can announce when a special meeting or an emergency meeting will be called.

7. What do you do if the Mayor unexpectedly vetoes an ordinance at the meeting after it was passed and there aren't enough Aldermen present to override the veto?

A: The law regarding the veto override is now a three-step process. First, the council or board passes the matter which the Mayor has the right to act upon by approval or veto. Not all matters are subject to the Mayor's veto. The Mayor can veto all ordinances and any resolutions or motions which create a liability against a Municipality, provide for the expenditure or appropriation of its money or sell any municipal property. The second step in the process is the action of the Mayor, which must be in writing, to veto the Council or Board action. The veto is to be returned to the Council or Board at the next regular meeting occurring not less than five days after passage of the action vetoed. Before a change in the law, it was thought that the Council or Board could act to override the Mayor or President's veto at the same meeting at which the veto message was delivered. The statute has now been clarified to provide that the response of the legislative body is to take place at the next regular meeting which follows the one at which the veto message was delivered. While somewhat delaying and extending the process, this statutory change now prevents a situation where the Mayor can deliver a veto message unexpectedly at a meeting at which there are not sufficient members present to override the veto. (Act, §5/3.1-40-45). Remember that there are a few governmental forms in which the mayor or president does not have veto power.

8. 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?

A: 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. (Act, §5/11-15.1-3) It is important for elected officials to know those instances in which an extraordinary majority vote is required.

9. Does a Mayor have to approve an ordinance for it to become effective?

A: No. When the municipality passes an ordinance, all Mayors who possess veto power have the choice of approving the ordinance by signing it, vetoing the ordinance, or allowing it to become effective without their signature. Mayors have until the next regular or special meeting, which occurs not less than 5 days after the passage of the ordinance, to decide whether they wish to veto the ordinance. Vetoes must be presented in writing at or prior to the date of that subsequent meeting. The council or board must then wait one additional regular meeting before making an effort to achieve the vote of at least two-thirds of the Aldermen or Trustees then holding office in order to override the mayoral veto. Mayors with veto power have the ability to reject all motions or resolutions involving the expenditure of funds and all ordinances without regard to subject.

10. Can a Mayor veto part of an appropriation?

A: In Illinois, Mayors are given the ability to return items to the council or board with a partial veto which involves only some of the items contained within an ordinance or motion authorizing the appropriation or expenditure of sums of money. Act, §5/3.1-40-45.

11. Can a governmental body reconsider actions previously taken?

A: Governmental bodies generally have the ability to reconsider actions previously taken subject to their own rules of procedure and the rights of intervening third-parties. If, for example, a governmental body has authorized the execution of a contract, and that document has been signed, it cannot destroy the rights of the other party to the contract if a majority of its members have simply had a change of mind at the next governmental meeting. The rules applicable to some governmental bodies do make the decision of a legislative body subject to the veto of an executive. In those cases, the effectuation of a governmental decision awaits the determination of the executive who has the ability to veto the legislative action, subject to having the veto overridden.

The procedures of some governmental bodies also specifically deal with efforts by the legislative branch of government to reconsider and overrule a decision made at one meeting at the next meeting of the public body. Those rules generally require that a motion to reconsider be made by an individual who was on the prevailing side of the motion and may have changed his or her mind. Such rules, however, generally cannot interfere with the rights of third parties who had acted upon the governmental action during the period of its validity. Sometimes, the rights of third parties who have acted on the basis of the prior governmental action have a right to continue under the prior rules, such as a property owner who may be entitled to continue a "non-conforming use."

Finally, decisions made by a governmental body may be overturned by later action of the legislative body. This is especially the case if new facts have come to the attention of the government which lead a majority of its members to wish to overturn actions previously taken. Normally, however, procedural rules would allow the presiding officer of a meeting to refuse to recognize an individual on the losing side of an issue who wishes to continue to debate a matter which the governmental body has recently discussed and acted upon.

12. Our board has been told that if a member is absent, the absence is counted as a "no" vote on a rezoning ordinance.

A: An absent member cannot vote at all, except by phone, under procedures approved by the municipality, so it would be improper to count an absence as a vote either for or against a proposal. The person telling you that an absence is a "no" vote on zoning matters may be getting confused about "super-majority" votes. In some zoning cases (and other situations), a 2/3 or 3/4 majority vote is required to approve a proposal. If a member is absent, there may not be enough "yes" votes to approve the proposal, even if a simple majority votes in favor of it.

13. Can an item be discussed and voted on if it does not appear on the agenda?

A: Any item can be DISCUSSED at a meeting, even if it was not on the published agenda. However, appellate court decisions have held that it is improper to VOTE on an item which is not on the agenda. We advise our clients not to vote on matters which do not appear on the agenda. If it is absolutely necessary to act on some matter, a special meeting or even an emergency meeting can be convened, on proper notice, with the crucial item, for action, being shown on the agenda.

14. What do you do with minutes and tape recordings of closed session meetings?

A: The statutes require that minutes be taken of all meetings, whether open or closed to the public. Minutes of closed meetings should be approved in closed session. Every six months, the corporate authorities are required to review the minutes of closed session meetings which have not previously been released to the public to determine whether the minutes still need to be kept in confidence or whether such minutes, or portions thereof, no longer require confidential treatment and should be available for public inspection. That determination should be formalized by resolution in open session. (5 ILCS 120/2.06(c)). Governments are also required to record closed sessions on audio or video tape. The tapes can be erased after 18 months if the written minutes of the meeting have been approved and there has been no lawsuit filed to contest the validity of the closed session. The tapes may also be available for discovery in a federal court suit, having nothing to do with the open meetings issue. In that case, the municipality will be entitled to the attorney-client privilege for comments made by the attorney or relating to strategy.

15. What do you do if the Clerk is ill and cannot take the minutes?

A: An opinion by the Illinois Attorney General makes it clear that the Municipal Clerk is entitled to take minutes of the meetings of the corporate authorities. If the Clerk is ill and cannot take the minutes, and there is a Deputy Clerk, that individual should take the minutes. If the Clerk or Deputy Clerk is not present, then the council or board can and should appoint a recording secretary to take the minutes of the meeting. Clerks are also permitted to attend all meetings of the corporate authorities, both open and closed meetings. The Clerk can be barred from attendance at a closed meeting only when the matter being discussed is one in which the Clerk's position is adverse to that of the municipality, such as in litigation involving the Clerk.

The answers to Questions 16 through 30 can be found in one of the ten freely downloadable pamphlets in the Ancel Glink Library: Municipal Questions & Answers—230 Governmental Questions That Have Actual Answers. ThQuestions 16 through 30, with the question numbers as they appear in the pamphlet, are shown below.

16. Must closed session minutes be ultimately released? (26)

17. A member of the zoning board consistently goes to the board's secretary after a meeting and tells her to write the minutes according to what he thinks was "meant to be said" at the meeting rather than what the secretary actually wrote in her notes. Is this proper procedure? (28)

18. Do members of the audience have a legal right to speak at board or council meetings? (29)

19. Can a person in attendance at a public hearing ask questions of witnesses? (31)

20. Can a public body meet only for the purpose of going into a closed session? (35)

21. Can the entire council try to reach a settlement with the presence of the suing developer in closed session? (37)

22. Should matters susceptible to being discussed in closed session always be discussed in that forum? (38)

23. If a finance committee of a governmental body goes into closed session to discuss the appointment of an auditor, and the audio taping machine does not work, what should it do? (41)

24. Can a governmental body go into a closed meeting even if the topic of "closed meeting" does not appear on the agenda of that meeting? (42)

25. What do you do if a member of the public comes to a Village Board meeting and begins setting up an elaborate light system to photograph the meeting? (45)

26. Can a public body hold a meeting with less than 48 hours' notice? (49)

27. Can two Aldermen or Trustees call a special meeting? (55)

28. Are Trustees allowed to speak as many times as they wish regarding a pending motion? (56)

29. Can the Aldermen or Trustees create their own committee structures? (58)

30. What can a "lame duck" council or board do before the next group takes over? (64)

In addition to the Ancel Glink pamphlet containing questions and answers, and the nine other downloadable pamphlets in the Ancel Glink Library, the law firm prepares a Question of the Week, which is printed in the on-line publication, Local Government News, which is sent to its subscribers six days a week. That publication contains web links to articles from newspapers across-the-State and other publications which are of interest to officials of local government. The management of Local Government News has agreed to offer two months' free subscriptions to attendees of the Illinois Municipal Conference who will e-mail Local Government News at: info@localgovernmentnews.org with the words "Free Ancel Glink Membership." Our law firm is a subscriber to this excellent service, and we would recommend that municipal officials take advantage of this offer.