April 17, 2006
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.
I have received your correspondence concerning in which you requested a "decision" concerning certain matters relating to the Village of Warsaw Zoning Board of Appeals.
According to your letter, following a hearing and a meeting, the Chairman of the Board
announced that the ZBA would make its "decision" pertaining to a certain matter on March 23. Several present objected to that date because it conflicted with a function scheduled that night, and further, because the speakers at the function were also the appellants in the matter to be decided by the Board on March 23. You added that the "decision to set the date was not voted upon during the meeting and came from a previously closed session meeting of the ZBA with the Mayor." You also referred to a subsequent "unannounced meeting" during which another request to reschedule the meeting was denied. Additionally, attached to one of your letters is the ZBA’s code of conduct, which states in part that "[a]fter the close of public comments, the Board will decide whether to rule this evening or within the 62 day statutory time frame."
In this regard, it is emphasized that the neither the Committee on Open Government nor its staff is empowered to render a decision that is binding. Rather, this office is authorized to provide advice and opinions, and the following comments should be considered advisory.
First, the portion of the code of conduct quoted above is, in my view, unclear. When the Board decides to "rule...within the 62 day statutory time frame", the language does not indicate whether such decision involves rendering a decision at some point within 62 days or whether that provision has been interpreted to require the Board to specify a date within 62 days on which it will render a decision.
Second, it does not appear that the Board could validly have met during a "closed session" with the Mayor to set the date for rendering its decision. In short, the Open Meetings Law is based on a presumption of openness. Stated differently, meetings of public bodies, such as a zoning boards of appeals, must be conducted open to the public unless there is a basis for entry into executive session. Paragraphs (a) through (h) of §105 of the Law specify and limit the grounds for conducting an executive session, and in my opinion, setting a date for an upcoming meeting could not properly have been discussed by the Board during an executive session.
Similarly, I do not believe that the Board could properly "discuss the evidence presented" at a hearing during a "closed session meeting." I note by way of historical background that numerous problems and conflicting interpretations arose under the Open Meetings Law as originally enacted with respect to the deliberations of zoning boards of appeals. In §108(1), the Law had exempted from its coverage "quasi-judicial proceedings". When a zoning board of appeals deliberated toward a decision, its deliberations were often considered "quasi-judicial" and, therefore, outside the requirements of the Open Meetings Law. As such, those deliberations could be conducted in private. Nevertheless, in 1983, the Open Meetings Law was amended. In brief, the amendment to the Law indicates that the exemption regarding quasi-judicial proceedings may not be asserted by a zoning board of appeals. As a consequence, zoning boards of appeals are required to conduct their meetings pursuant to the same requirements as other public bodies subject to the Open Meetings Law.
You asked whether a decision to set the date of a meeting is "nullified because it was made in secret." If a judicial proceeding is initiated under the Open Meetings Law, §107 provides that a court may, in its discretion, nullify action taken in private in violation of that statute. Therefore, if action is taken in violation of law, it is not automatically void, but rather is voidable.
Lastly, you referred to "unannounced" meetings. Here I point out that every meeting of a public body must be preceded by notice of the time and place given in accordance with §104 to the news media and by means of posting in one or more designated public locations.
I hope that I have been of assistance.
Robert J. Freeman
cc: Zoning Board of Appeals