UPDATE: In this alert originally published on October 1, we misreported a portion of the Fifth District Appellate court’s opinion in stating that the Court found the February 29, 2008 meeting agenda item titled “Superintendent of Schools Resolution” was sufficient to meet the standard set out in Section 2.02(c) of the OMA. The Court did not make a determination whether that description was sufficient, since the complaint regarding that agenda description was time-barred. The Court did, however, examine the sufficiency of a different agenda item from a later meeting on April 8, 2008. The Court found the title “Amend Ordinance No. 08-02-29-02 An Ordinance Imposing School Facility Retailers’ Occupation and Service Occupation Taxes-Section 6” was a sufficient description for the passage of an ordinance even though the ordinance that was adopted did not involve an amendment to a separate ordinance. The Court reasoned that the agenda item was specific enough to put the public on notice that action would be taken on a resolution imposing the sales tax. We have revised this alert accordingly.
Recently, an appellate court in the Fifth District upheld a countywide sales tax implemented through the School Facility Occupation Tax Law. In doing so, the Court denied relief to an Open Meetings Act (OMA) challenge due to the plaintiffs’ failure to bring the claim within the statutory time frame.
In P and S Grain v. Williamson County, two plaintiffs sought to have a sales tax voided as well as a permanent injunction to prevent any further collection of the tax. Plaintiffs alleged that the sales tax was passed in violation of the OMA (55 ILCS 102/1 et seq.). Specifically, plaintiffs contended that defendants’ meeting agenda on February 29, 2008 titled “Superintendent of Schools Resolution” was not specific enough to notify the public that the county board would vote on the imposition of the sales tax, and that the ordinance exceeded its authority by granting a service occupation tax in addition to the proposed sales tax. The circuit court denied the plaintiffs relief and held that the complaint was time-barred because it was not filed within 60 days after the alleged violations, as required by the Section 3 of the OMA.
On appeal, plaintiffs argued that even though their complaint was filed 60 days after the alleged violations, it was still timely because it was filed within 60 days of the State’s Attorney discovering the violations, who they allege did not become aware until after the judgment was entered. The Appellate Court reviewed Section 3 of the OMA that states in part “any person, including the State’s Attorney of the county in which the noncompliance violation occurs, may bring a civil action in the circuit court….prior to or within 60 days of the meeting alleged to be in violation, or within 60 days of the discovery of a violation by the State’s Attorney.” The Court held that this clause of the OMA was intended to create two time periods to apply to two different entities—private citizens and the office of the State’s Attorney. As such, the Court upheld the lower court’s decision that the plaintiffs’ claim was time-barred and made clear that OMA complaints by members of the public must be made within 60 days after the alleged violation.
The Court declined to address the merits as to whether the meeting agenda item titled “Superintendent of Schools Resolution” was specific enough to inform the public that the Board would be adopting an ordinance imposing a sales tax. However, the Court did examine a subsequent meeting held on April 8, 2008 that had an agenda item titled “Amend Ordinance No. 08-02-29-02 An Ordinance Imposing School Facility Retailers’ Occupation and Service Occupation Taxes-Section 6.” The Court found this title to be a sufficient description for the passage of the sales tax ordinance, even though the ordinance that was adopted did not involve an amendment to a separate ordinance. Looking to Section 2.02(c) of the OMA that states “any agenda required shall set forth the subject matter of any resolution or ordinance that will be subject of final action….” the Court reasoned that the agenda was specific enough to put the public on notice that action would be taken on a resolution imposing a sales tax.