Recently, the Illinois Public Access Counselor rendered a binding opinion, holding that a committee violated the Open Meetings Act when it chose to recommend an individual to fill a vacancy on the committee and made that decision by straw vote.

At a February 12, 2013 meeting, the Edgar County Airport Advisory Board discussed the need to fill a vacancy on the Board and the names of four candidates who had expressed an interest in the position were read aloud.  Paper ballots listing the names of the four candidates were distributed and five Advisory Board members circled their choices before placing their ballots into a coffee can.  The ballots did not identify which Board member cast which vote.  The ballots were removed from the can and the votes counted.  The person who counted the votes announced an individual who received three votes and the Advisory Board recommended that individual to the Edgar County Board, which had the final appointment authority.  An individual complained to the PAC regarding the Advisory Board’s process.

In its decision, the PAC emphasized that advisory and other subsidiary bodies of a public body, including “committees and subcommittees thereof,” are considered “public bodies” under the OMA and are, therefore, subject to its requirements.  Section 2(e) of the OMA provides that “[f]inal action [by a public body] shall be preceded by a public recital of the nature of the matter being considered and other information that will inform the public of the business being conducted.”  Citing prior precedent, the PAC stated that the intention of the OMA favors open deliberation, as well as open action.

The Advisory Board argued that it did not take final action to recommend a candidate because the County Board was free to accept or reject the Advisory Board’s recommendation.  The PAC, however, held that although the vote to select a candidate was not binding on the County Board, the recommendation of a candidate to fill the vacancy on the Advisory Board was clearly a final action by the Advisory Board.  It was not, as the Advisory Board contended, a preliminary, informal procedure for gauging support or opposition for the specific candidates.  Therefore, the vote was subject to the requirements of the OMA.

According to the PAC, the problem with the Advisory Board’s process was that members did not reveal their choices to the public and the Advisory Board did not make a record of how each member voted.  As a consequence, the PAC directed that the Advisory Board conduct its future meetings in full compliance with the OMA by listing on its agenda the matters for action and conducting an open vote that informs the public of each Advisory Board member’s vote.  The PAC, despite its criticism, did not appear to invalidate the Advisory Board’s action in this instance, but only directed the Advisory Board to comply with the OMA in the future.