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TO: Mayor and City Council
FROM: The Law Department
DATE: July 10, 2020
SUBJECT:
The ratification of actions taken by the City Council and its committees during meetings conducted between April 1, 2020, and June 11, 2020.
PURPOSE:
To foreclose any possibility of challenges to actions taken by the Council or its committees during the COVID-19 pandemic prior to the General Assembly specifically authorizing remote meetings.
BACKGROUND:
On March 16, 2020, Governor Pritzker issued Executive Order 2020-07, which was the 5th executive order he issued in response to the COVID-19 crisis. In the Order, the Governor declared that portions of the Open Meetings Act requiring or relating to in-person attendance by members of a public body were suspended during the duration of his March 9, 2020, disaster declaration. Thereafter, public bodies throughout the State, including those in the City began to conduct their business meetings by remote means, including the Zoom web conferencing platform. Over the course of the next two months, the Governor issued successive disaster declarations and "stay-at-home" orders that required public bodies to continue to conduct their business meetings without the physical presence of a quorum. The orders cited the "emergency powers" afforded the Governor by the Illinois Emergency Management Agency Act as the source of his authority to suspend portions of the Open Meeting Act.
On June 12, 2020, Public Act 101-0640 became law. Public Act 101-0640, among other things, amended the Open Meetings Act to expressly allow public bodies to conduct meetings without the physical presence of a quorum. Prior to June 12, 2020, no statutory authority existed for public bodies to meet entirely by remote means. From March 16 through June 12, 2020, the Governor's disaster proclamation and executive orders were arguably the only source of legal authority to conduct remote meetings.
On Thursday, July 2, 2020, the Circuit Court of the Fourth Judicial Circuit sitting in downstate Clay County entered an order declaring that the Governor was not authorized to exercise his "emergency powers" after the 30th day following his initial March 9, 2020 disaster declaration. The court therefore concluded that subsequent executive orders were void ab initio (from the very beginning) and had no legal effect.
DISCUSSION:
The effect of the Clay County ruling is presently the subject of debate and it is clear that the Governor intends to appeal as soon as possible. Nevertheless, there is no question that absent the Governor's orders, public bodies throughout the state would have had to fully comply with all of the requirements of the Open Meetings Act to conduct business during the pandemic, including the requirement that a quorum be physically present at publicly accessible locations. During this time, the City conducted all of its meetings in accordance with guidance provided by the Attorney General who acknowledged and presumed the authority of the Governor to suspend the Open Meetings Act. In fact, when Senate Bill 2135 passed the General Assembly on May 23, 2020, the City immediately began to adhere to its heightened requirements for remote meetings despite the fact they were not yet binding.
Regardless of the result of the Clay County litigation, prior to June 12, 2020, there was no statutory authority for public bodies to conduct fully-remote meetings. Despite the City's good faith reliance on the Governor's Orders and the Attorney General's guidance, it is prudent and good practice for the City Council adopt the attached ordinance ratifying its actions, and in some cases, the actions of its committees, between March 16 and June 12.
IMPACT STATEMENT:
Adoption of this Ordinance forecloses the very unlikely possibility that actions taken by the Council or its committees between April 1 and June 11, 2020, could be successfully challenged. The Ordinance "closes the loop" and cures any defects in a process borne of necessity during unprecedented times.
RECOMMENDATIONS:
That the Council approve this Ordinance.
CITY OF AURORA, ILLINOIS
ORDINANCE NO. _________
DATE OF PASSAGE ________________
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An Ordinance ratifying all actions taken by the City Council and its committees during meetings conducted between April 1, 2020 and June 11, 2020, due to the COVID-19 Pandemic.
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WHEREAS, the City of Aurora has a population of more than 25,000 persons and is, therefore, a home rule unit under subsection (a) of Section 6 of Article VII of the Illinois Constitution of 1970; and
WHEREAS, subject to said Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs for the protection of the public health, safety, morals, and welfare; and
WHEREAS, on March 9, 2020, the Governor of Illinois ("Governor") declared a statewide state of emergency related to the COVID-19 Pandemic; and
WHEREAS, pursuant to said declaration, on March 16, 2020, the Governor issued Executive Order 2020-07 that, among other things, suspended portions of the Open Meetings Act that require or relate to in-person attendance by members of a public body; and
WHEREAS, pursuant to said declaration, on March 20, 2020, the Governor issued Executive Order 2020-10, which constituted a statewide "stay-at-home" order and banned gatherings of more than ten people; and
WHEREAS, throughout April, May, and June of 2020, the Governor issued a series of disaster declarations and executive orders that continued the suspension of provisions of the Open Meeting Act, prohibited most public gatherings, and found in-person meeting attendance by more than ten people unfeasible; and
WHEREAS, beginning on April 1, 2020, and continuing through June 11, 2020, it was necessary for the City Council and its committees to conduct business without the physical presence of a quorum under the authority conferred by gubernatorial order; and
WHEREAS, on June 12, 2020, Public Act 101-0640, which amended the Open Meetings Act to permit remote meeting attendance in limited circumstances, became law; and
WHEREAS, to resolve any question as to the validity of actions taken by the City Council or its committees between April 1, 2020, and June 11, 2020, the City Council as the corporate authorities of the City desires to ratify its actions and the actions of the committees at meetings conducted pursuant to gubernatorial order. )
NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of Aurora, Illinois, as follows: that all actions taken by the City Council at its meetings of April 1, 2020, April 14, 2020, April 28, 2020, May 12, 2020, May 26, 2020, and June 9, 2020, shall be and hereby are ratified; and further
BE IT ORDAINED, that all actions taken by the Rules, Administration, and Procedures Committee at its meeting of June 2, 2020, shall be and hereby are ratified; and further
BE IT ORDAINED, that all actions taken by the Infrastructure and Technology Committee at its meeting of June 8, 2020, shall be and hereby are ratified; and further
BE IT ORDAINED, that all actions taken by the Public Health, Safety, and Transportation Committee at its meeting of June 9, 2020, shall be and hereby are ratified; and further
BE IT ORDAINED, that all actions taken by the Building, Zoning, and Economic Development Committee at its meeting of June 10, 2020, shall be and hereby are ratified; and further
BE IT ORDAINED, that all actions taken by the Finance Committee at its meeting of June 11, 2020, shall be and hereby are ratified.