As coronavirus (COVID-19) spreads in Illinois, many public bodies are considering: (1) canceling “non-essential” public meetings and hearings; (2) deferring consideration of “non-essential” agenda items; and/or (3) holding public meetings and hearings remotely, through technological means (remote meetings), rather than in person. Those measures are intended to limit the spread of COVID-19 and protect the health and safety of public officials, employees and the public. But, for companies with business before public bodies, those measures may pose serious risks. Real estate developers and property owners seeking land use, zoning and incentive approvals, restaurant and bar owners seeking licensing approvals, government contractors seeking contract awards and many other types of companies that need regulatory approvals will be affected.
This alert summarizes some of the most significant risks, with the understanding that the facts related to COVID-19 and the approaches taken by public bodies with respect to public meetings and hearings are fluid and the particular circumstances of each company and public body may affect the applicability and analysis of these risks.
1. Due Process Requirements Applicable to Public Hearings.
Certain types of governmental approvals require a public hearing before a public body may take final action. In many cases, participants in public hearings have a constitutional right to due process, which sometimes includes the right to confront witnesses and rebut testimony. In those cases, the technological limitations of remote meetings may not satisfy applicable due process requirements. If a public hearing is held at a remote meeting before a public body takes final action on a governmental approval needed by a company, a risk exists that an opponent of the approval could challenge the sufficiency of the public hearing, claiming that the hearing violated the opponent’s due process rights. If successful, a due process claim could invalidate any final action taken by the public body and, therefore, the approval sought by the company.
2. Open Meetings Act Requirements Applicable to Public Meetings.
The Illinois Open Meetings Act (OMA) requires all meetings of public bodies at which final action is taken to have a quorum of members of the public body physically present. It also requires the meetings to be open to the public and held at places that are “convenient and open to the public.” Remote meetings do not meet the first requirement and arguably do not meet the second.
The governor of Illinois issued an executive order on March 16, 2020 (the order) that purports to relieve members of public bodies of their obligation under the OMA to be physically present at meetings. The governor, however, likely lacks the legal authority to suspend the OMA with respect to public bodies that are not part of state government. The Illinois Emergency Management Act, pursuant to which the governor issued the order, authorizes the governor to suspend procedural formalities with respect to public bodies within the state government, but that authority does not include other public bodies, such as municipalities. Without specific authority granted by the General Assembly, the governor likely does not have inherent authority to suspend the application of OMA to public bodies outside of state government because of the separation of powers doctrine.
A risk therefore exists that an opponent of a governmental approval needed by a company could challenge any action taken at a remote meeting by a public body — other than a public body within state government — on the basis of OMA violations. OMA violations do not automatically void action taken by a public body. Rather, violations of the OMA render such actions voidable. Courts decide whether the circumstances justify voiding the action. Under the circumstances of COVID-19, it is possible that courts would not void actions taken by public bodies that are necessary to perform essential government functions and respond to the emergency. But it is less clear that courts would not void governmental approvals unrelated to essential governmental functions and emergency response. With respect to such approvals, a court may find that the requirements of the OMA should apply and the approvals should be considered at an in-person meeting after the coronavirus threat has dissipated. Companies, therefore, face a risk that a court could void governmental approvals adopted at a remote meeting by a public body, other than a public body of the state, in violation of the OMA.
3. Public Health, Political and Public Relations Risks.
If a public body elects to hold in-person meetings in order to comply with any applicable due process requirements and/or the provisions of the OMA, a risk exists that the in-person meeting could contribute to the spread of COVID-19 and harm the public. This public health risk may be compounded by political and public relations risks if members of the public believe that the company and the public body prioritized a non-essential governmental approval over public safety. Even if a company receives the governmental approval it desires without risk of a legal challenge, the risk of a resulting public relations crisis could outweigh the benefits of receiving the approval.
The risks described above present companies with three basic options.
- First, a company could accept the risk of challenges by opponents if a governmental approval is granted after a public hearing is held or final action is taken at a remote meeting.
- Second, a company could accept the public health and public relations risks of an in-person meeting in order to obtain a governmental approval that cannot be challenged — assuming other procedural requirements have been followed — on the grounds of due process and OMA violations.
- Third, a company could choose to allow a matter to be considered at a future in-person meeting after the threat of COVID-19 has dissipated.
Choosing the option that works best for a particular company may depend on various factors, including the company’s business objectives, economic circumstances, the state of COVID-19 in the applicable jurisdiction, the type of meeting to be held and many others. The author and other attorneys at Taft are available to assist companies in analyzing those factors and developing appropriate strategies.