Illinois AG Ruling

OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS
KWAME RAOUL
ATTORNEY GENERAL
March 27, 2019
Via electronic mail
Mr. Gary Jury

6290 Torch Lite Trail
Loves Park, Illinois 61111
grjury43@gmail. com
Via electronic mail
The Honorable Frank Haney, Chairman

Winnebago County Board
Administration Building
404 Elm Street, Room 533
Rockford, Illinois 61101
BoardOffice@WINcoIL. us
RE: OMA Request for Review —2019 PAC 56847
Dear Mr. Jury and Mr. Haney:
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 explained below, the Public Access
Bureau concludes that the Winnebago County ( County) Board ( Board) did not violate OMA in
connection with a Board member' s January 16, 2019, e- mail and letter to other Board members.
BACKGROUND
On February 14, 2019, this office received Mr. Gary Jury' s Request for Review
alleging that on January 16, 2019, Board member John Butitta sent an e- mail to all other
members of the Board attaching a letter in which Mr. Butitta urged the other members to call for
the withdrawal of a certain proposal or to reject the proposal at an upcoming Board meeting. On
February 19, 2019, this office sent a copy of the Request for Review to the Board and requested
that it provide a written response to Mr. Jury' s allegations and requested copies of any records
that documented those discussions, as well as copies of any records of communications, such as
e- mails and text messages. On February 28, 2019, the Board provided the records of
500 South Second Street, Springfield, Illinois 62701 • ( 217) 782- 1090 • TTY: ( 877) 844- 5461 • Fax: ( 217) 782- 7046
100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312) 814- 3806
601 South University Ave., Carbondale, Illinois 62901 • ( 618) 529- 6400 • TTY: ( 877) 675- 9339 • Fax: ( 618) 529- 6416
Mr. Gary Jury
The Honorable Frank Haney
March 27, 2019
Page 2
communications. On March 8, 2019, this office forwarded the Board's cover letter to Mr. Jury;
in a March 11, 2019, telephone conversation with an Assistant Attorney General in this office,
Mr. Jury indicated that he would not reply.
DETERMINATION
The Open Meetings Act provides that public agencies exist to aid in the conduct
of the people' s business, and that the intent of the Act is to assure that agency actions be taken
openly and that their deliberations be conducted openly." Gosnell v. Hogan, 179 Ill. App. 3d
161, 171 ( 5th Dist. 1989). In order for the requirements of OMA to apply, a gathering must
constitute a " meeting" as defined by section 1. 02 of OMA ( 5 ILCS 120/ 1. 02 ( West 2016)):
Meeting" means any gathering, whether in person or by

video or audio conference, telephone call, electronic means ( such
as, without limitation, electronic mail, electronic chat, and instant
messaging), or other means of contemporaneous interactive

communication, of a majority of a quorum of the members of a
public body held for the purpose of discussing public business or,
for a 5 -member public body, a quorum of the members of a public
body held for the purpose of discussing public business.
Under this statutory definition, a " meeting" may include communications through
e- mail or other electronic means. The Board is comprised of twenty members. Accordingly,
eleven Board members constitute a quorum, and a majority of the quorum is six members.
Therefore, contemporaneous, interactive e- mail or other electronic communications involving at
least six members of the Board which concern " public business" would ordinarily constitute a
meeting of the Board which would be subject to the procedural safeguards and requirements of
OMA.
OMA does not define " interactive" or " contemporaneous." In interpreting statutes
such as OMA, undefined statutory terms must be afforded their " plain, ordinary, and popular
meanings[,]"
which may be gleaned from dictionaries. See, e. g., Valley Forge Insurance Co. v.
Swiderski Electronics, 223 I11. 2d 352, 366 ( 2006).
Interactive" is defined, in relevant part, as " mutually or reciprocally active."'

This office has reviewed the e- mails the Board provided concerning Mr. Butitta' s January 16,
2019, e- mail and letter. The letter contained Mr. Butitta' s opinion regarding a proposed change
Merriam -Webster Online Dictionary, https:// www.merriam- webster.com/ dictionary/ interactive

last visited March 21, 2019).
Mr. Gary Jury
March 27, 2019
Page 3
to County ordinance provisions concerning the authority of the County administrator. The
relevant communications are as follows: On January 10, 2019, Mr. Butitta sent a draft of the
January 16, 2019, letter to another Board member. The Board member responded approximately
ten hours later and did not include any other Board members on the e- mail. On January 16,
2019, Mr. Butitta attempted to send the message and letter at issue to the 19 other Board
members and himself. It appears as though Mr. Butitta misspelled five of the Board members' e-
mail addresses, but presumably the e- mail was successfully transmitted to 15 Board members.
Nine minutes later, Mr. Butitta sent the same message and attachment to the same 19 Board
members' e- mail addresses and himself, and copied two additional e- mail addresses for a Board
member whose e- mail he had misspelled. Shortly thereafter, Mr. Butitta sent four separate e-
mails attaching the letter, one to each of four of the five Board members whose e- mail addresses
he had misspelled. On January 16, 2019, at 1: 04 p. m., a Board member replied to Mr. Butitta' s
e- mail, but did not copy any other individuals. On January 16, 2019, at 3: 25 p. m., a different
Board member replied to Mr. Butitta' s e- mail, but did not copy any other individuals. On
January 18, 2019, a third Board member replied to Mr. Butitta's e- mail, but did not copy any
other individuals. On January 16, 2019, one Board member forwarded Mr. Butitta' s e- mail to an
individual who is not on the Board. On January 18, 2019, two other Board members forwarded
Mr. Butitta' s message to other individuals who are not on the Board. Importantly, none of the e-
mail strings provided to this office regarding the January 16, 2019, correspondence included six
or more Board members engaged in interactive communications by responding to each other' s e-
mails.
The Board also included two e- mail strings related to Mr. Butitta' s letter that
originated from individuals who are not members of the Board. The first e- mail string begins
with a message sent on January 19, 2019, from anon -Board member to a single Board member,
who then forwards the message to three other Board members. One Board member then
forwards the message to a non -Board member. There is no indication from the records provided
that any Board members replied to each other. The second e- mail is from a non -Board member
to seven Board members. Again, there is no indication that any Board members responded to the
individual' s e- mail.
In sum, none of the relevant communications that the Board provided to this
office were " interactive" communications of at least a majority of a quorum of the Board. This
office has not received evidence from which we could determine that such communications
occurred. Accordingly, based on the available information, this office concludes that Mr.
Butitta's January 16, 2019, e- mail did not elicit communications among Board members which
constituted a " meeting" subject to the requirements of OMA.
Mr. Gary Jury
March 27, 2019
Page 4
The Public Access Counselor has determined that resolution of this matter does
not require the issuance of a binding opinion. If you have any questions, please contact me at the
Springfield address on the first page of this letter, LHarter@atg. state. il.us, or ( 217) 524- 7958.
This letter serves to close this file.
Very truly yours,
Dracut
LAURA S. HARTER
Deputy Bureau Chief

Public Access Bureau
56847 o no vio mun

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OFFICE OF THE ATTORNEY GENERAL

March 27, 2019

Via electronic mail

Mr. Gary Jury

Via electronic mail

The Honorable Frank Haney, Chairman

RE: OMA Request for Review —2019 PAC 56847

Dear Mr. Jury and Mr. Haney:

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

Meeting" means any gathering, whether in person or by

messaging), or other means of contemporaneous interactive

Interactive" is defined, in relevant part, as " mutually or reciprocally active."'

Merriam -Webster Online Dictionary, https:// www.merriam- webster.com/ dictionary/ interactive

Very truly yours,

Deputy Bureau Chief

56847 o no vio mun

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