January 10, 2024

Via electronic mail

The Honorable Gary Grasso, Mayor
Village of Burr Ridge
7660 County Line Road
Burr Ridge, Illinois 60527
ggrasso@burr-ridge.gov

RE: OMA Request for Review – 2023 PAC 79472

Dear Mayor Grasso:

The Public Access Bureau has received a Request for Review in which Mr. Jack
Bentley of the Citizen's Advocacy Center alleges that the Village of Burr Ridge Board of
Trustees (Board) violated the Open Meetings Act (OMA) (5 ILCS 120/1 et seq. (West 2022)) at
its October 23, 2023, meeting. A copy of the Request for Review is attached.

In his Request for Review, Mr. Bentley alleges that during the public comment
period at its October 23, 2023, meeting, the Board violated section 2.06(g) of OMA 1 by (1)
instructing members of the public to sign a pad of paper to represent their opposition to a
proposed gas station rather than voicing their opposition; (2) instructing individuals to provide
their home addresses on that pad; (3) prioritizing elected officials over other individuals wishing
to address the Board; and (4) ending the period for public comment before all who wished to
speak were able to address the Board.

We have determined that further inquiry is warranted. In order to further evaluate

this matter, we request that the Board or its representative provide a written response to the
allegations in the Request for Review. In your response, please provide a copy of the Board's
established and recorded rules regarding public comment. Please provide copies of the October
23, 2023, meeting agenda, minutes, and open session recording (if available).

1
5 ILCS 120/2.06(g) (West 2022).
The Honorable Gary Grasso
January 10, 2024
Page 2

As required by section 3.5(b) of the Open Meetings Act (5 ILCS 120/3.5(b)

(West 2022)), please provide this information to our office within 7 working days after
receipt of this letter. As we conduct our review of this matter, we will notify you if we need to
review additional records or information. You have the option under the Act to provide a written
response to these allegations in addition to the requested materials. That response may take the
form of a letter, brief or memorandum. Please note that under the Act, we are required to
forward a copy of any response from a public body to the requester and provide the requester an
opportunity to reply. 5 ILCS 120/3.5(c) (West 2022). The Act also permits a public body to
provide a copy of a response with confidential information redacted for release to the requester.
If you claim that any portion of your written response is confidential, please send two
versions of your response letter: a complete copy for this office's confidential review and a
redacted version suitable for this office to forward to the requester. If you believe that other
documents or information would be helpful to us as we review the issues, you may submit
additional records or affidavits.

Please contact me at (217) 843-0564 or laura.harter@ilag.gov if you have

questions or would like to discuss this matter. Thank you.

Very truly yours,

LAURA S. HARTER
Deputy Bureau Chief
Public Access Bureau

Attachment

cc: Via electronic mail

Mr. Jack Bentley
Executive Director
Citizen Advocacy Center
jbentley@citizenadvocacycenter.org
Dunham, Lorraine

From: Jack Bentley <jbentley@citizenadvocacycenter.org>

Sent: Thursday, December 21, 2023 3:27 PM
To: Public Access
Subject:[ EXTERNAL] Request to Review
Attachments: CAC PAC Analysis Burr Ridge 2023.10.23 - FINAL.docx; Request for Review Form OMA 2023.12.21.pdf

Good aernoon,

Please nd aached a request for review for a potenal violaon of the Open Meengs Act. A link to the relevant
meeng is included below.

Thank you for your consideraon.

Most sincerely,

Jack Bentley
Execuve Director
Cizen Advocacy Center

Link to video: Board Meeng October 23rd 2023 (youtube. com)

1
 Statement of Facts

On October 23, 2023, the Village of Burr Ridge hosted their regular monthly board

meeting. As this meeting was a " meeting of a public bod[ y]" it is subject to the requirements of

the Illinois Open Meetings Act. 5 ILCS 120/ 2.06. At the October 23rd meeting, the Village

Board discussed whether to reconsider their opposition to the construction of a QuikTrip gas

station to be built just outside the Village' s corporate borders. ( Should Burr Ridge withdraw their

opposition to the project QuikTrip would require only a simple majority vote for approval by the

DuPage County Board, as opposed to a three- fourths super majority from the County Board.)

After the board heard from representatives of QuikTrip, Burr Ridge Mayor Gary Grasso

opened the meeting to public comment on the matter. When addressing the audience members

wishing to make public comment, Mayor Grasso asked which of the audience members who

wished to speak were Burr Ridge residents, and which were not, distinguishing between these

two groups. 1 Upon seeing the large number of audience members who wished to speak against

the QuikTrip project, Mayor Grasso circulated a pad of paper and asked audience members to

sign their names and put down their addresses on the pad. Those who signed the pad were

recorded as being against the project, with the pad to be put " in the record". 2 Mayor Grasso then

allowed some members of the public to speak on their opposition to the project. When selecting

who was and was not allowed to speak, Mayor Grasso favored allowing elected officials to speak

over others. 3 Following a motion to reconsider the Village Board' s opposition to the QuikTrip

project, Mayor Grasso opened the floor for more public comment while simultaneously

discouraging further comments by implying they would be a waste of time. 4 Further showing

1
Meeting Recording at 1:17:06
2
Meeting Recording at 1:25:09
3
Meeting Recording at 1:44:07
4
Meeting Recording at 2:13:36
favoritism towards elected officials, Mayor Grasso allowed Downers Grove Township

Supervisor Paul Coultrap to speak before cutting off public comment. 5

Analysis

This case involves constitutional issues of freedom of speech under the First Amendment,

U.S. Const. Amend. I, as well as statutory claims under the Illinois Open Meetings Act. 5 ILCS

120/ 2.06. Pursuant to the Illinois Open Meetings Act, any " person who believes that a violation

of th[ e] Act by a public body has occurred may file a request for review with the Public Access

Counselor." 5 ILCS 120/ 3.5(a). The conduct of the Village of Burr Ridge Board at the

October 23rd meeting violated both the First Amendment and the Open Meetings Act by

limiting the content of the speech allowed at public comment and by requiring some meeting

attendees to provide their address at public comment.

1. The Village of Burr Ridge Board violated meeting attendees’ First Amendment

rights and the Illinois Open Meetings Act by limiting the content of speech allowed

at the October 23rd meeting.

The First Amendment protects free speech in public forums such as the public comment

section of meetings covered by the Open Meetings Act. See Hague v. Comm. for Indus. Org.,

307 U.S. 496 ( 1939). Content- based restrictions on speech are subject to strict scrutiny and must

serve a compelling state interest and be narrowly drawn to achieve that purpose. Reed v. Town of

Gilbert, Ariz., 576 U.S. 155, 164 ( 2015). Typically, only content- neutral “ reasonable time, place,

and manner restrictions” restrictions are allowed for content- based speech. I.A Rana Enterprises,

5
Meeting Recording at 2:17:00
Inc. v. City of Aurora, 630 F. Supp. 2d 912, 922- 923 ( N.D. Ill. 2009). Additionally, the Attorney

General has found these rules “ must tend to accommodate, rather than to unreasonably restrict,

the right to address public officials.” See Ill. Att’ y Gen. Pub. Acc. Op. No. 19-002, issued Jan. 9,

2019, at 5.

Here, the Burr Ridge Board’ s conduct at the October 23rd meeting was a content- based

speech restriction that clearly violated attendees’ First Amendment rights. The first restriction

occurred when only certain members of the audience were allowed to speak. Due to the high

volume of attendees wishing to speak, Mayor Grasso opted to have many of those attending the

meeting sign a pad of paper to represent their opposition to the QuikTrip gas station, instead of

voicing their comments as they came to the meeting intending to do. Instead, Mayor Grasso

hand- picked a select group of attendees and allowed them to voice their opposition to the gas

station, showing preference towards elected officials in attendance over others. Mayor Grasso cut

off public comments after Downers Grove Township Supervisor Paul Coultrap gave his

comment. By not allowing everyone who came to give public comment that night the

opportunity to voice their opinion, the content of the public comment section of the meeting was

restricted. The only comments that were given were against the QuikTrip gas station, meaning

that attendees only got to hear arguments from one side of this issue. Perhaps there were no

audience members there that night who wished to speak in favor of the gas station being built,

but this is a question we will never know the answer to, given the fact that Mayor Grasso cut-off

public comment before everyone had been given their opportunity to speak. In addition to only

hearing speakers against the gas station, Mayor Grasso’ s utilization of the sign- in pad of paper

also limited the content of speech at public comment that evening. Those who wrote their names

on the pad of paper were not given the opportunity to speak, and simply had their names marked
down as being in opposition to the project. These individuals all have their own unique

complaints about the project, separate from those who were allowed to speak. The Village may

argue that the pad of paper was simply a convenient tool for note keeping purposes, and that

those who signed it self- imposed the restriction as they would have been allowed to speak if they

wished to. However, this argument does not hold up as Mayor Grasso telling those who signed

the pad that they would be recorded as in opposition of the gas station in lieu of giving public

comment had a chilling effect on attendees' speech. See Ill. Att’ y Gen. Pub. Acc. Op. No. 14-

009, issued Sept. 4, 2014 ( finding that the Lemont Village Board’ s requirement that Plaintiff

state her address had a chilling effect by making her feel as if she needed to provide her address

even if the Lemont Board would have still allowed her to speak without providing her address).

In addition to the First Amendment violations, the Burr Ridge Board’ s conduct at the

October 23rd meeting violated the Illinois Open Meetings Act. 5 ILCS 120/ 2.06. Under the

Illinois Open Meetings Act, "any person shall be permitted an opportunity to address public

officials under the rules established and recorded by the public body." 5 ILCS 120/ 2.06(g). The

purpose of 5 ILCS 120/ 2.06(g) is "to accommodate a speaker' s statutory right to address the

public body while ensuring that order and decorum are maintained at public meetings." See Rana

Enterprises, Inc., 630 F. Supp. 2d at 923- 25. This body has previously found that those wishing

to give public comment at a meeting are subject " only to a public body's established and

recorded rules." Ill. Att’ y Gen. Pub. Acc. Op. No. 14-009, issued Sept. 4, 2014, at p. 5; see also

Ill. Att’ y Gen. Pub. Acc. Op. No. 23-013, issued Sept. 13, 2023, at p. 3. Here, the " established

and written" rules for meetings of the Burr Ridge board are found under Burr Ridge Municipal

Code 2.68.1, " Rules Regarding Public Participation And Conduct At Meetings Of The Board Of

Trustees." Burr Ridge Municipal Code 2.68.1(a) states that:

a) Any person who seeks to address the Village Board, at the time allotted by the Board

for public comment shall be permitted to speak only upon recognition by the presiding

officer, and such person shall adhere to the following rules:

1) Each person addressing the Village Board shall state his name for the record.

2) Any person or agent representing a committee, an organization or a group of

residents, citizens or other persons shall identify officers or organizers of such

committee, organization, or group, including disclosing whether the organizers or

officers of such committee, organization or group are residents of Burr Ridge.

3) Each person shall be granted no more than five (5) minutes per meeting in order to

address the Village Board, unless such time is extended by the presiding officer.

4) Questions and/ or commentary shall be limited to municipal business.

5) Commentary shall be directed to the presiding officer, unless that officer permits

the individual to address the Board members or other officers present.

6) Questions and/ or commentary shall take place in a professional manner which

displays mutual respect.

7) Profanity shall not be used in any form or manner.

8) Abusive language or personal attacks, including sexist, ethnic, racist or similar

derogatory language, shall not be permitted.

9) The Village President/ Mayor or presiding officer shall have the authority to

terminate the public comments at any meeting of any person who violates these Rules

and demand that person leave the meeting or cease participation therein.
None of these rules details a procedure for having audience members sign in on a pad of paper as

an alternative to providing public comment at meetings. None of these rules limits the number of

speakers who are allowed to present at public comment or imposes a time limit on how much

time can be allotted in total for public comments on an agenda item. Lastly, there is certainly no

rule favoring speech from certain classes of citizens over others ( displaying a preference for

public comment from elected officials).

The Village may argue that they had significant governmental interests in imposing these

restrictions to make sure that the meeting was run in a timely and orderly fashion. However, even

if these were seen as significant governmental interests, the Burr Ridge Board would still have

violated the Open Meetings Act as these methods of conducting public comment are not outlined

under Burr Ridge Municipal Code 2.68.1. See Ill. Att’ y Gen. Pub. Acc. Op. No. 23-013, issued

Sept. 13, 2023, ( finding that even if the School Board had a significant governmental interest in

forbidden Public Comments on personnel matters, forbidding such public comments would still

be a violation of the Open Meetings Act as this rule was not recorded ahead of the meeting).

This body has made it clear in its past rulings that the " established and written" rules for

meetings come from a village’ s ordinances, and cannot come from other sources such as “ custom

and practice,” see Ill. Att’ y Gen. Pub. Acc. Op. No. 14-009, or supplemental materials such as a

welcome packet at a meeting, see Ill. Att’ y Gen. Pub. Acc. Op. No. 19-002. In order to be in

compliance with the Open Meetings Act such rules must first be incorporated into the public

body’ s rules. See Ill. Att’ y Gen. Pub. Acc. Op. No. 14-009.

Section 2.06(g) of the Open Meetings Act is violated when a board denies members of

the public an opportunity to address the members of the public body in open session. See Ill.

Att’ y Gen. Pub. Acc. Op. No. 21-009, issued Sept. 21, 2021, at p.4 (citing Roxana Community
Unit School Dist. No. 1 v. Environmental Protection Agency, 998 N.E.2d 961, 965, 971 ( 2013)).

In Ill. Att’ y Gen. Pub. Acc. Op. No. 21-009, the Hillsboro Board of Education denied the public

this opportunity by only allowing one member of the public to come into a closed session

meeting at a time to give their comments, as opposed to giving their comments in a public forum

of an open session meeting. Similarly here, members of the public who signed the pad of paper

were not afforded the opportunity to address the members of the public body in open session as

they were not allowed to speak. Additionally, anyone wishing to speak after Downers Grove

Township Supervisor Paul Coultrap was not afforded this opportunity.

By failing to allow everyone who wished to give public comment at the October 23rd

meeting the opportunity to do so and by failing to conduct public comment in the manner

prescribed under Burr Ridge Municipal Code 2.68.1, the Burr Ridge Village Board restricted the

content of speech at the meeting and violated the Open Meetings Act.

2. The Village of Burr Ridge Board violated meeting attendees’ First Amendment

rights and the Illinois Open Meetings Act by requiring attendees to provide their

address at public comment.

As previously stated, public comment at meetings is a matter of free speech under the

First Amendment, See Hague v. Committee for Industrial Organization, 307 U.S. 496 ( 1939),

and must serve a compelling state interest and be narrowly drawn to survive strict scrutiny. Only

content- neutral restrictions dealing with the “ time, place, and manner” of the speech are allowed,

I.A Rana Enterprises. Inc. v. City of Aurora, 630 F. Supp. 2d 912, 922-923 ( N.D. Ill. 2009), and

these restrictions should “ tend to accommodate, rather than to unreasonably restrict, the right to
address public officials.” See Ill. Att’ y Gen. Pub. Acc. Op. No. 14-012, issued September 30,

2014, at 6-7.

Mayor Grasso and the Village Board violated these First Amendment rights when they

required meeting attendees to put their addresses on the pad of paper to be recorded in opposition

to the QuikTrip gas station. Such a requirement could have the effect of chilling speech. An

individual may have wanted to show their opposition to the gas station but not provide their

address resulting in them not exercising their First Amendment right. Burr Ridge may argue that

they would have still accepted a signature without an address and that such a restriction was self-

imposed. However, this body has previously recognized the chilling effect such address

requirements can have on speech at public comment and rejected the theory that unenforceable

address requirements such as this are self- imposed. See Ill. Att’ y Gen. Pub. Acc. Op. No. 14-009,

issued Sept. 14, 2014. Burr Ridge may argue that they have a compelling state interest in

knowing the addresses of those giving public comment for accurate record keeping and to know

if commenters are Burr Ridge residents. However, these interests were not narrowly tailored in

any way such as providing a disclaimer that putting one’ s address is optional. As such the

public’ s First Amendment rights were violated.

In addition to the First Amendment violation, the requirement for those signing the pad of

paper to put their address also violated the Illinois Open Meetings Act. 5 ILCS 120/ 2.06. Under

the Open Meetings Act rules for public comment must be “ established and recorded by the

public body.” Id. Here, the requirement to state one’ s address was not established or recorded by

the Burr Ridge Village Board. None of the rules outlined in Burr Ridge Municipal Code 2.68.1

require one to state their address when giving public comment. Nor should a rule be enforced

from sources such as “ custom and practice”, see Ill. Att’ y Gen. Pub. Acc. Op. No. 14-009, or
supplemental materials such as a welcome packet, see Ill. Att’ y Gen. Pub. Acc. Op. No. 21-009.

As there is no “ established and recorded” rule in the Village of Burr Ridge requiring those

seeking to give public comment to provide their address, Burr Ridge violated the Open Meetings

Act.

Burr Ridge could argue that they need this information for accurate record keeping in the

meeting minutes, and to know if public commenters are Burr Ridge residents; however, this body

has rejected such theories in the past. The purpose of 5 ILCS 120/ 2.06(g) is to accommodate a

speaker' s statutory right to address the public body while ensuring that order and decorum are

maintained at public meetings, not to assist public bodies in record keeping. See Rana

Enterprises, Inc., 630 F. Supp. 2d at 923- 25. As such, the Attorney General’ s office has

previously determined that requiring public commenters to state their address would be a

violation of the Open Meetings Act. The act provides that “[ a] ny person shall be permitted an

opportunity to address public officials” regardless of where they reside. Ill. Att’ y Gen. Pub. Acc.

Op. No. 14-009, issued Sept. 14, 2014 ( quoting 5 ILCS 120/ 2.06).

Conclusion

The Village of Burr Ridge’ s conduct at the October 23rd meeting violated the public’ s

First Amendment rights, as well as the Illinois Open Meetings Act. By (1) Failing to follow the

public comment rules found under Burr Ridge Municipal Code 2.68.1, (2) only allowing certain

individuals to give public comment at the meeting, and ( 3) requiring those who signed the pad of

paper in lieu of giving public comment to provide their address, Mayor Grasso limited the

content of speech allowed at public comment and violated the Open Meetings Act.