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SCHOOL LAW


Recent Court and Agency Decisions
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Open Meetings Act - OMA

Agenda; Sufficiently Informing the Public of the Nature of the Business Being Conducted Before Taking Final Action
The Bd. of Educ. of Springfield Sch. Dist. No. 186 v. The Attorney Gen. of Ill., 2017 WL 243397 (Ill. 2017).
A school board met in closed session to discuss the possibility of entering into a separation agreement with the then-Superintendent. The Superintendent signed and dated the agreement during the closed meeting. During a subsequent closed meeting, six of seven board members signed but did not date the agreement. Next, the Board posted the agenda for a subsequent open meeting on its website, listing an item to approve the resolution and separation agreement between the Superintendent and Board. The agenda identified the Superintendent by name and contained a link to the full text of the separation agreement. At the open meeting, the Board read the agenda item and full text of the resolution, conducted a roll call vote, and approved the resolution and agreement. The Attorney General found the Board violated OMA, stating that by signing the agreement in closed session the Board took final action, and the Board did not adequately inform the public of the nature of the matter under consideration. The circuit court reversed this decision and the appellate court affirmed.

The Attorney General then appealed to the Illinois Supreme Court, which agreed with the lower courts and found in favor of the Board. The Court held that under Section 2(e) of OMA, a public recital must take place at the open meeting before the matter is voted upon, and the recital must announce the nature of the matter being considered. Adequate detail to identify the particular issue is required, but this does not require an explanation of its terms or significance. The Court also held that here, reading the agenda item and full text of the resolution before taking a roll call vote satisfied OMA. The Court further clarified that final action does not, as the Attorney General claimed, require a board to provide a detailed explanation about the significance or impact of the proposed final action.

The decision means that during a validly conducted closed session, board members may continue to express their individual positions without fear they are taking impermissible final action. Activities in closed session like taking a straw poll or signing a document are permissible provided the board later takes final action in a properly conducted open session.

Cassandra Black, IASB Law Clerk

Agenda; Sufficiently Informing the Public of the Nature of the Business Being Conducted Before Taking Final Action
Public Access Opinion 16-015
A public body violated Section 2.02(c) of OMA by voting to amend and approve a settlement agreement without including the general subject matter of the final action on the meeting agenda. The public body’s attorney was present at the meeting and specifically advised the public body that it could not take final action because the matter was not on the agenda, but the public body moved ahead with final action. The PAC ordered the public body to remedy this violation by reconsidering its final action on the settlement agreement at a properly noticed meeting with a proper agenda.

This opinion is binding only to the parties involved and may be appealed pursuant to State law.

Right to record open meetings
Public Access Opinion 16-014
Rules that require advance notice to the public body before recording a meeting may violate OMA. Here, a public school district prohibited an individual from recording its September 20, 2016 board meeting because the individual only provided notice of his request to record 10 minutes before the meeting began, and the school district’s practice was to require 24-hours’ advance notice. In addition, this particular meeting took place in a school learning resource center, where students were present, and the school district asserted that 10 minutes’ advance notice did not allow sufficient time to arrange for the individual to record the meeting from a location that would prevent student images from appearing in it. Citing to PAC Opinion No. 12-010 (June 5, 2012), the PAC affirmed that any rule requiring advance notice of recording a meeting has a steep burden to overcome in order to demonstrate it is reasonable. Here, the PAC found that the school district had not met its burden of demonstrating that advance notice of recording was reasonable. The PAC further found that if the locations of board meetings raised student privacy concerns then the school district is obligated to select a location for meetings where the right to record is not curtailed or to otherwise eliminate the concern (such as by prohibiting students from accessing the learning resource center during meetings).

This opinion is binding only to the parties involved and may be appealed pursuant to State law.

Improper Closed Session Discussion of Salary Increases
Public Access Opinion 16-013
The public body violated Section 2(a) of OMA at its September 26, 2016 meeting by improperly relying upon Section 2(c)(1) to engage in a closed session discussion of an across-the-board pay raise for non-union employees. Section 2(c)(1) permits public bodies to close a portion of a meeting to discuss “the appointment, employment, compensation, discipline, performance, or dismissal of specific employees of the public body,” but it does not permit a public body to discuss in closed session budgetary matters concerning broad categories of employees. The PAC ordered the public body to make publicly available the portion of the closed session verbatim recording of its September 26, 2016 meeting related to an across-the-board pay raise for non-union employees.

This opinion is binding only to the parties involved and may be appealed pursuant to State law.

Sufficiently informing the public of the nature of the business being conducted before taking final action
Allen v. Clark Cnty. Park Dist. Bd. of Comm., 2016 IL App (4th) 150963 (11-16-16).
During a public meeting, the board voted to approve two items listed on its agenda as “X. Board Approval of Lease Rates” and “XI. Board Approval of Revised Covenants.” A member of the public then asked the board to describe what it had just voted on, and the board declined to. Plaintiffs then filed suit, alleging the board violated Section 2(e) of the Open Meetings Act by failing to make a sufficient public recital of items X and XI prior to voting on them. Section 2(e) of OMA specifically requires that final action “be preceded by a public recital of the nature of the matter being considered and other information that will inform the public of the business being conducted.” The appellate court found that plaintiffs had sufficiently stated a claim for an OMA violation and that their case would not be dismissed because “although we are unsure precisely what standard of specificity is required of a public recital, we can say with confidence that the Board’s actions in this case were insufficient.” The court reasoned that while “a detailed explanation about the significance or impact of the proposed final action” is not necessary, a public body must provide enough details to inform the public of the nature of the matter being considered.

Improper Closed Session Discussion of Legal Matters Under Exception for Pending, Probable or Imminent Litigation
Public Access Opinion 16-007
The public body violated Section 2(a) of OMA at its June 6, 2016 meeting by: 1) closing a portion of its meeting to discuss legal matters under the Section 2(c)(11) exception for pending, probable, or imminent litigation without recording or entering into the closed session minutes its basis for finding that litigation was probable or imminent; and 2) discussing the mere possibility of legal action related to a bond sale during closed session without reasonable grounds to believe that a lawsuit was more likely than not to be instituted or that such an occurrence was close at hand. At a previous meeting of the same public body on May 31, 2016, a member of the public addressed the public body regarding the bond sale issue and stated that the public body was “ignoring the residents” and thus “forcing a lawsuit.” Prior to moving into closed session at the June 6, 2016 meeting, however, the same member of the public again addressed the public body, this time to clarify that her group was “not proceeding with a lawsuit. So I wanted to make it clear that if this is in fact the pending or imminent litigation, there is none on our part.” Due to the absence of “reasonable, specifically identified grounds” to believe litigation related to the bond sale was close at hand, the PAC found the public body was not justified in entering closed session. The PAC ordered the public body to make publicly available the portion of the closed session verbatim recording of its June 6, 2016 meeting related to the bond sale issue.

This opinion is binding only to the parties involved and may be appealed pursuant to State law.

Open Meetings Act: “public comment”
Komaa Mnyofu v. Board of Educ. of Rich Twp. High Sch. Dist. 227, 2016 WL 1319736 (N.D. IL. 2016).
The U.S. District Court for the Northern District of Illinois enjoined (stopped) Rich Township High School District 227 from enforcing its policy, expressed verbally during board meetings and in writing on board agendas, encouraging individuals to “refrain from mentioning the name of students and employees” during the public comment portion of its board meetings. Here, Plaintiff Mnyofu had been speaking during the public comment portion of a board meeting for over two minutes when he began criticizing individuals by name. In response, the board president asked for the microphone to be turned off, a security guard to stop Mnyofu from speaking, and the police to be called. Mnyofu continued to speak for approximately three more minutes before leaving the meeting. In finding that Mnyofu was entitled to a preliminary injunction to stop the board from enforcing this policy, the court did not reach the merits of Mnyofu’s claim that the board’s policy prohibits criticism of school officials and thus that the board intends to prohibit speech based on its content.

Sufficiently informing the public of the nature of the business being conducted before taking final action
Board of Education of Springfield School District No. 186 v. Attorney General of Illinois, 2015 IL App (4th) 140941 (1-12-16).
Originally issued Dec. 15, 2015, the court issued a corrected opinion. During a public meeting, the board voted to terminate employment of its superintendent. The superintendent and the board reached agreement as to terms of separation, and he signed a 19-page “separation agreement and release.” The board appropriately considered the superintendent's dismissal and signed the agreement during closed session one month prior to its vote in open session as permitted by section 2(c)(1) of Open Meetings Act.

The Alliance filed an Amicus (friend of the court) brief in support of the Springfield School District 186 Board of Education.

Failure to cite exceptions and improper discussions in closed sessions
Public Access Opinion 15-007
The public body violated section 2a of OMA by failing to reveal and record in the meeting minutes that they were asserting section 2(c)(1) and section 2(c)(2) as its basis for closing a portion of its meeting.

The public body improperly discussed the elimination of an employee’s position for reasons unrelated to the performance of the employee, which is not within the scope of the section 2(c)(1) exceptions. In addition, discussion of a hiring freeze was not within the scope of the section 2(c)(2) exception. Because the county was not engaged in collective bargaining at the time of the meeting, the hiring freeze did not constitute a collective negotiating matter.

This opinion is binding only to the parties involved and may be appealed pursuant to State law.

Shanell M. Bowden, IASB Law Clerk

Exceptions to Open Meetings and Agendas
Public Access Opinion 15 -005
A public body must cite the specific exception authorizing the closing of a meeting to the public. Section 2 (c) of the OMA allows an exception for discussions that directly involve specific employees. This section does not contain an exception that permits a public body to hold closed sessions to discuss employees in general or issues that may ultimately have an impact on employees.

The public should have advance notice that the public body is going to take final action. Here, the public body failed to incorporate in their regular meeting agenda an item indicating that a final action may be taken or any reference to the subject matter of the contract that was the subject of final action. The only reference to the discussion and vote on the contract was an item on the agenda titled “Executive Session”. Thus, the public body failed to give advance notice and violated Section 2.02(c) of the OMA.

This opinion is binding only to the parties involved and may be appealed pursuant to State law.

Shanell M. Bowden, IASB Law Clerk

Open Meetings Act Closed Session Exemptions
Public Access Opinion 15 -003
For the second time, the PAC has told public bodies they cannot discuss budgetary matters even when they directly or indirectly affect employees during a closed meeting pursuant to Section 2(c)(1) of OMA.

To the extent that a public body is required to discuss the relative merits of individual employees as a result of its fiscal decision, such discussion may properly be closed to the public under section 2(c)(1) of OMA. But, the underlying budgetary discussions leading to those decisions may not be closed to the public. (Emphasis added). See PAO 12-011. The bottom line here is that public bodies may not use an OMA exemption to get at underlying budget issues.

This opinion is binding only to the parties involved and may be appealed pursuant to State law.

Open Meetings Act: “public comment”
Public Access Opinion 14 -012
“The public has a statutory right to address public bodies.”

A public body denied an individual the right to address it during its open meeting. The public body’s rules required individuals to submit written requests at least five working days before meetings. This individual’s request was submitted four days before the meeting and therefore denied by the public body.

A rule like this violates OMA. OMA requires public bodies to allow “[a]ny [individual(s)] …to address [them] under the rules established and recorded by the [it].” Rules for addressing a public body may only impose reasonable “time, place and manner” regulations that are necessary to further a significant governmental interest, e.g., maintaining decorum during public meetings. This rule did not. It did not even give the public an opportunity to see the posted agenda (required 48 hours before a meeting) before requesting to address the public body.

This opinion is binding only to the parties involved and may be appealed pursuant to State law.

Open Meetings Act (OMA) Duty to Inform the Public of the Nature of the Business under Consideration Prior to Taking Final Action
P & S Grain v. Williamson County, ----, (Ill.App. 5th, 9/2014).
Here, plaintiffs alleged that a county board passed a sales tax in violation of the Open Meetings Act (OMA). The appellate court agreed with the lower court’s holdings. First, the OMA complaints by members of the public must be filed within 60 days after the alleged violation by the public body, although States Attorneys have a bit more time (60 days from their “discovery” of a violation). Second, the county’s meeting agenda titled “Superintendent of Schools Resolutions” was specific enough to notify the public that the county board planned to vote on imposing a sales tax.

For thought, see PAO 14-001, where the Ill. Attorney General’s Public Access Counselor (PAC) issued a binding opinion about another public body’s posted agenda item and its action upon that agenda item. There, the PAC held that despite the agenda item being posted, along with a readily available document online, the public body should have also provided a “verbal explanation of the significance of [the public body’s] action to members of the public who are present at the meeting before it can proceed to consider taking action” (that PAO is currently on appeal and is only binding to the parties involved).

For help with ensuring agenda items are sufficient under OMA, contact the school board’s local counsel.

Open Meetings Act: “public comment”
Public Access Opinion 14 -09
“Anyone” means just that: anyone – without regard to where they reside.

A rule that requires someone to state his or her address before speaking to a public body violates the Open Meetings Act (OMA). OMA states, “[a]ny person shall be permitted an opportunity to address the public officials under the rules established and recorded by the public body[.]”

Here, public officials asked a woman trying to address them to state her home address before beginning her comments. She did not particularly wish to do so, but eventually did. Then, she filed a request for review with the Ill. Public Access Counselor.

This opinion states that any rule, whether in policy or by custom or practice, that requires a person to provide an address before addressing a public body, is not a rule that “ensures that order and decorum are maintained at public meetings,” which violates the OMA.

This opinion is binding only to the parties involved and may be appealed pursuant to State law.

Agenda
Public Access Opinion 14 - 03
A public body posted its agenda 48 hours before a meeting as OMA requires. Then, it amended its agenda 29 hours before the meeting. The amendment deleted two action items upon which the public body would vote on at a later date. The intent of the amendment was to inform the public that the items would not be voted upon during the meeting as previously announced. In this case, the public still had at least 48 hours’ notice of the items for which the public body would take action. The PAC found no violation of OMA.

This opinion is binding only to the parties involved and may be appealed pursuant to State law.

Sufficiently informing the public of the nature of the business being conducted before taking final action
Public Access Opinion 14 -01
A public body approved a separation agreement with its former superintendent. Initially, the vote occurred in closed session (which the PAC found to be a violation of OMA in PAO 13-007). Later, the public body attempted to rectify the situation. It posted proper notice and an agenda with an action item to vote on the separation agreement in open session. The public body voted in open session on the separation agreement, which is now the subject of this opinion. The PAC concluded that the public body did not properly “recite the nature of its action” and “inform the public of the business being conducted,” despite the fact that it informed the public that the separation agreement was available as a viewable attachment to the agenda item for the open meeting. The PAC found this practice insufficient, stating:

1. Posting the separation agreement on the website together with the meeting agenda item only satisfies the “notice and posting” requirement of OMA; it does not satisfy the duty to publicly recite the nature of the action.

2. Before a public body may take final action, it must meet two additional requirements:

a. Publicly recite the nature of its action; and

b. Provide a “verbal explanation of the significance of its action to members of the public who are present at the meeting before it can proceed to consider taking action.” This explanation should provide information from which the public might understand the purpose and effect of the public body’s action.

This opinion is binding only to the parties involved and may be appealed pursuant to State law.

Adequacy of a motion to go into closed session
Henry v. Anderson (v. Champaign Community Unit School District No. 4), 827 N.E.2d 522 (Ill.App.4, 4-18-05).
A former employee sued school board members alleging that two of their closed board meetings violated the Open Meetings Act. In the first meeting, the school board voted to go into closed session “to discuss an employee matter, specifically the reclassification of employment” without giving a statutory citation. The court found that the Act does not require a statutory citation; it requires “a citation to the specific exception contained in” the Act. Said the court: “By referring to an ‘employee matter’ and ‘reclassification of employment,’ defendants adequately identified the exception in section 2(c)(1). An additional citation to the statutory subsection might have been helpful but was not required. Citing the exception was sufficient.”

The second meeting being scrutinized violated the Open Meetings Act because the reason given for going into closed session – “litigation” – was not supported by required information. Said the court: “The ‘litigation’ exception is a forked path. If the litigation has been filed and is pending, the public body need only announce that in the proposed closed meeting, it will discuss litigation that has been filed and is pending. If the litigation has not yet been filed, the public body must (1) find that the litigation is probable or imminent and (2) record and enter into the minutes the basis for that finding. Evidently, the legislature intended to prevent public bodies from using the distant possibility of litigation as a pretext for closing their meetings to the public.” The court remanded the case to the trial court for a remedy determination.

Adequacy of a motion to go into closed session
Galena Gazette Publications, Inc., v. County of Jo Daviess, No. 2-06-0917 and 0243 (cons.) (July 18, 2007).
Local newspapers asked the Jo Daviess County Board to produce tapes of two closed meetings discussing real estate with the City Council of Galena and the Jo Daviess County Planning and Development Committee; the County Board refused. The newspapers filed a lawsuit seeking publication of the tapes and minutes claiming certain peripheral discussions about a lease during the closed meetings were not exempt from disclosure under the Open Meetings Act. On July 18, 2007, the Second District Appellate Court reversed and the Jo Daviess circuit court and ruled that no distinction for purposes of exemption from Open Meetings Act exists between the discussions concerning the “material terms of the lease” and the “peripheral matters such as how the lessee would utilize the space rented”. The court asserted that nothing in the Open Meetings Act draws a distinction between “material” matters and “peripheral” ones and creating such a distinction between them would be “exceedingly difficult to apply” because the line between “material” and “peripheral” terms “is bound to be either arbitrary or vague.” Therefore, the Second District held that the Open Meetings Act applies to tapes and minutes of the entirety of an executive/closed session - even to topics that may be peripheral and could be redacted.

Injunctions for violating OMA
Roxana CUSD #1 v. WRB Refining, LP and EPA, Pollution Control Board & Dept. of Revenue, (Ill. App. 4th, 2012).
The plaintiff, Roxana school district (district) was concerned about its tax revenue decreasing based upon certain certifications that the Pollution Control Board (PCB) was granting to the co-defendant WRB. The district alleged that another public body like itself, the PCB, and the other co-defendants violated the OMA when granting these certifications. But instead of writing to the public access counselor, the school district requested the court to issue a preliminary injunction (a court order to stop the PCB from holding closed meetings) under the OMA.

The court issued a preliminary injunction against the PCB, ordering it to (1) stop violating the OMA and (2) hold its future meetings “with WRB” in public. WRB appealed the order with two arguments. First, it argued that the preliminary injunction should not apply because the court did not follow the general rule of law that applies when a court issues a preliminary injunction. Specifically, WRB wanted the chance to dispute the school district’s allegations before the court ordered the preliminary injunction. Second, WRB argued that the order was too narrow because it only applied to meetings “with WRB” and the PCB, not “all” entities that appear before the PCB.

The court held that the language in the OMA creates an exception to the general rule of preliminary injunctions. That means the court had full authority to issue the preliminary injunction under the OMA without allowing WRB to dispute the school district’s allegations as it could under the general rule. However, the court did modify the order specific to WRB to “more closely comport with the equity and the intent of the OMA” by applying it to “all” entities’ business before the PCB.

This decision is a reminder to school officials that courts have authority to order them to hold their meetings in public and always follow the intent of the OMA. Violating a court order can sometimes lead to various contempt of court allegations. It is also an example that public bodies can allege violations against each other. For questions about your district’s specific OMA practices contact the board attorney.

Voting abstentions & the Public Officer Prohibited Activities Act
People v. Bertrand, 2012 IL App (1st) 111419 (September 28, 2012).
A three-member Board of Trustees (Board) held a meeting where two of its members attended. Two members equal a quorum on this type of public body. The members who attended the meeting were Mr. Bertrand and Ms. Mallory. During the meeting, they went into closed session to discuss a proposed settlement agreement of a lawsuit against the Board, brought by Mr. Bertrand. When the closed session ended, Ms. Mallory moved for the Board to approve a settlement agreement with Mr. Bertrand. Mr. Bertrand seconded the motion. Ms. Mallory voted “yea,” and Mr. Bertrand abstained from voting. The Board considered the motion passed.

Community members sued the Board over this motion. Then, the Ill. Attorney General intervened (took over). It argued that the settlement agreement was void for two reasons: (1) Mr. Bertrand’s actions violated section 3(a) of the Public Officer Prohibited Activities Act (“Act”) because he participated in the negotiation of the settlement agreement, and (2) Ms. Mallory’s one yea vote out of a quorum of two members did not equal a majority to pass the motion for approval of the settlement agreement.

Agreeing with both arguments, the court held the settlement agreement was void. First, the court held that Mr. Bertrand had personal pecuniary interests that conflicted with his duty not to use his elected office for his own financial gain. Conflict of interest statutes are passed to “discourage this type of ethical dilemma and the abuses that stem from it.” Second, the court held that although the Board had a quorum and could legally hold a meeting with a quorum of two, one vote for the proposed settlement agreement was not enough to pass the motion. A majority means the number greater than half of any total. When an affirmative vote of yes is required (e.g., expenditures of money), then only an actual “yea” or “aye” vote is counted toward passage of the motion. Any abstention or attempt to vote other than “yea” or “aye”, including abstaining, operates as a “nay” vote. Mr. Bertrand’s abstention had the effect of a “nay” vote.

Illinois Eavesdropping Act
Carroll v. Merrill Lynch, 2012 WL 4875456, (7th Cir. 10/16/12).
This case may be of interest to school officials because the Illinois Eavesdropping statute applies to any conversation, including lawfully closed meetings under the Illinois Open Meetings Act. What that means is that while a recording of a closed meeting is required by the Illinois Open Meetings Act, an individual in a closed meeting making his or her own recording without the knowledge or consent of others present in the closed meeting would violate the Eavesdropping statute in Illinois. This case discusses the “fear of crime” exception to the Illinois Eavesdropping Act.

Mary Carroll called her coworker, Jim Kelliher late on a Thanksgiving Day. According to Carroll, she was “riled up” and she snapped on the phone. Kelliher’s wife overheard Carroll on the other end of the phone and recorded the conversation without Carroll’s knowledge. Kelliher was frightened after the phone call, and he reported it to his supervisors at Merrill Lynch. Carroll was fired for the phone call and initiated this suit as a violation of the Illinois Eavesdropping statute. The Illinois Eavesdropping statute prohibits recording conversations without the consent of all the parties and the subsequent use of that recording. 720 ILCS 5/14-2 (a)(1). The fear of crime exemption allows unauthorized recordings under a reasonable suspicion that another party to the conversation is committing, about to commit, or has committed a criminal offense against that person or a member of his or her immediate household. To determine a reasonable suspicion, the exemption requires that (1) a subjective suspicion that criminal activity is afoot, and (2) that the suspicion be objectively reasonable.

Carroll argues that the failure of Kelliher to call the police means that there was a lack of reasonable suspicion. However, Illinois criminalizes phone calls made with the intent to abuse, threaten or harass any person at the called number. 720 ILCS 135/1-1(2). Carroll’s own admission that she was angry and snapped on the phone can be used as evidence of the abusive nature of the phone call. Further, Kelliher’s wife had a reasonable suspicion of a crime, so her recording fell under the fear of crime exemption.

Rachel Prezek, IASB Law Clerk

Public participation
Paridon, et. al v. Trumbull County Children’s Services Board, 2013 WL 967577 (Oh. Ct. App., Dist. 11, Mar. 11, 2013).
The following case is from Ohio. It is not binding in Illinois. However, its facts and the ruling may be of interest to school officials. See the General Area “Public Access Counselor Opinions” for more information on the Illinois Open Meetings Act.

Patricia Paridon, among others, filed a complaint on October 20, 2011 for an injunction on the Trumbull County Children’s Services Board’s (“the board”) sign-in policy for public meetings. An injunction is a court order requiring a party to do something or to stop a party from doing something. Paridon asked the court to stop the board from enforcing its sign-in policy. The complaint alleged that on October 18, 2011, Paridon was not allowed to enter a public meeting of the board because she refused to sign a sign-in sheet in accordance with the board’s sign-in policy. Furthermore, the complaint alleged that this policy violated Ohio’s Sunshine Law. The trial court denied Paridon’s request for an injunction and she appealed the trial court’s judgment to the Court of Appeals.

The purpose of the board’s policy is to protect children that are within the board’s care and live at the board’s facility. The policy is also intended to protect the confidential records located within the facility. This facility is also where the public meetings are held. After a member of the public signs their name to the sign-in sheet, they are permitted to enter the meeting. The board does not verify the names of the individuals who have signed-in nor do they perform a background check.

Paridon made several arguments against the board’s policy. Among these arguments, Paridon stated that the Ohio’s Sunshine Law provided individuals with an absolute right to be present at public meetings. The court disagreed with this argument and stated that Ohio’s Sunshine Law does not preclude a public agency from instituting a policy requiring individuals to sign-in prior to admission to a public meeting. Paridon also argued that the board has not consistently required members of the public to sign-in prior to admission to a public meeting. However, the court stated that there was no evidence prior to this instance in which the board did not maintain a sign-in policy. Paridon then argued that Ohio’s Sunshine Law does not contain a sign-in requirement for public meeting and therefore, the board cannot implement one. The court disagreed with this argument as well, stating that the board may place access restrictions on their public meetings so long as these restrictions are content-neutral and narrowly tailored to serve a significant interest.

The court disagreed with all of Paridon’s remaining arguments. The court stated that the board’s sign-policy was content-neutral and narrowly tailored to assist in the board’s goal of protecting the children and the board’s confidential records. The court also stated that the sign-in policy was not intrusive into the lives of those wishing to attend the public meeting because it merely required a prospective attendee to sign his or her name to a sheet of paper. Furthermore, the policy did not prohibit individuals from attending the meeting. Rather, they had a choice to either sign their name or not. The Court of Appeals affirmed the trial court’s ruling denying Paridon’s request for an injunction.

Melissa-Ann E. Evanchik, IASB Law Clerk

Jurisdiction
Board of Educ. of Roxana Community School Dist. No. 1 v. Pollution Control Bd., --- N.E.2d ---, 2013 IL 115473 (November 21, 2013).
[NOTE: This appeal arises from the same underlying facts where Roxana Comm. Unit School Dist. No. 1 (RCUSD) asked for and was granted an injunction against the Illinois Pollution Control Board. The injunction required the PCB to (1) stop violating the OMA and (2) hold all of its future meetings in public pending the outcome of the trial on the allegations by RCUSD that PCB violated FOIA and OMA. See Roxana CUSD #1 v. WRB Refining, LP and EPA, Pollution Control Board & Dept. of Revenue, Ill. App. 4th 120331 (2012) (available in RC&AD archives) and Roxana Community Unit School Dist. No. 1 v. Environmental Protection Agency, --- N.E.2d ---, 2013 IL App (4th) 120825 (November 14, 2013) (available in the RC&AD District Organization and Operation section).]

In this appeal, the RCUSD asked the Illinois Supreme Court to review an appellate court decision. The appellate court found that it did not have jurisdiction (authority) to hear an appeal that was filed by the RCUSD. Using a provision in the Ill. Environmental Protection Act, RCUSD appealed directly to the appellate court (as opposed to the circuit court). RCUSD appealed the Pollution Control Board’s order denying its petitions to intervene in proceedings before the Pollution Control Board. The proceedings involved whether or not to certify a facility as a “pollution control facility.” The Illinois Supreme Court agreed with the appellate court. It found that RCUSD did not qualify or assert itself under any of the categories listed in the Ill. Environmental Protection Act, which are authorized to appeal a Pollution Control Board decision directly to an appellate court.

Public comment
Roxana Community Unit School Dist. No. 1 v. Environmental Protection Agency, --- N.E.2d ---, 2013 IL App (4th) 120825 (November 14, 2013).
This appeal continues from the summer of 2012 when Roxana Comm. Unit School Dist. No. 1 (RCUSD) asked for and was granted an injunction against the Illinois Pollution Control Board (PCB).

The injunction ordered the PCB to (1) stop violating the OMA and (2) hold all of its future meetings in public. See Roxana CUSD #1 v. WRB Refining, LP and EPA, Pollution Control Board & Dept. of Revenue, Ill. App. 4th 120331 (2012) (available in RC&AD archives).

The injunction only stopped the PCB from violating OMA during further proceedings pertaining to the parties of this case. The question of whether or not the PCB violated FOIA and OMA was to occur at a later date.

At that later date, the PCB won its motion for summary judgment in the trial court. This decision effectively stopped a trial on the question of whether the PCB violated the Illinois FOIA and OMA. RCUSD appealed this decision.

The Illinois Appellate Court reversed and remanded the case (sent it back to the trial court). On appeal, the Appellate court found as follows:

1. The PCB violated FOIA by not providing public records requested as statutorily mandated.

2. The PCB violated the mandates and overarching purpose of the OMA when it improperly prohibited public comment, restricted opportunity to address it during public comment to written filings, and discussed the merits of RCUSD’s claims in closed sessions.

For another related appeal out of this situation, please see Roxana Community Unit School Dist. No. 1 v. Environmental Protection Agency, --- N.E.2d ---, 2013 IL App (4th) 120825 (November 14, 2013) (available in the RC&AD District Organization and Operation section).

Discussions of budgetary concerns should have been held in open session
Public Access Opinion 12-11
5 ILCS 120/2(c)(1) is not intended to allow closed session discussion of fiscal matters, notwithstanding that they may directly or indirectly impact the employees of the public body. The facts in this opinion involved discussions in closed session that centered on broader budgetary concerns, such as staffing needs, how staff reductions would affect the services provided by the public body, and which services were most valuable to the public body’s residents. While the discussions of budgetary concerns did lead to discussions that are allowed under 5 ILCS 120/2(c)(1), they should have been held in open session.

Right to record open meetings
Public Access Opinion 12-10
Rules that require advance notice to the public body before recording a meeting violate the OMA. Here, a public body prohibited a citizen from recording its meeting because the citizen failed to provide advance notice that he would record the meeting. The public body’s rules required advance notice of the recording. The public body’s reason for its rule was so the public body’s clerk could ensure a citizen could get his or her equipment through the security checkpoint and to notify the public body of the recording. A public body may limit the right of the public to record open meetings only pursuant to prescribed rules, and then only to the extent that those rules are designed to prevent disruptions or avoid safety hazards and do not unduly interfere with the right to record. This public body’s rule was not reasonable or necessary to prevent interference with public meetings or protect the safety of those in attendance.

Convenient location
Public Access Opinion 12-08
A public body may not meet in a private residence, even when it gives a proper notice and posting of the meeting to the public. Here, a public body called a special meeting due to impending statutory time constraints. The public body knew that its routine meeting location would be closed for a holiday on the special meeting’s date, so it chose a public official’s private residence as the meeting location. The meeting location was not “convenient and open to the public” because a private residence could “reasonably be expected to deter citizens from attending the gathering. Citizens may have felt uncomfortable going to a public official’s home to attend a meeting. In this sense, the private residence was ‘ill-suited’ for a public meeting.”

Agenda
Public Access Opinion 13-2
Public bodies must set forth a description of the general subject matter that will be the subject of final action at the meeting. Here, standing committees of a public body had a practice of meeting during the morning of the day that their public body held its regular meetings. Then, the standing committees would refer their actions from the morning for the public body to take final action upon in the afternoon’s regular meeting. None of the standing committees’ actions were posted for final action on the public body’s agenda for the afternoon regular meeting. However, the standing committees’ actions were posted on the standing committee’s agendas for the morning. The PAC found this process violates 105 ILCS 120/2.02(c). To stop the violations, the PAC suggested that the public body list the same description of actions on its agenda that the standing committees would consider during the morning meetings.

No final action during closed session
Public Access Opinion 13-3
A public body improperly voted during closed session to terminate a tenured university faculty member. Taking final action during closed session is prohibited by 5 ILCS 120/2(e).

Taking Final Action at Closed Session Prohibited; Duty to Record Closed Meetings; Summary of Discussion Required in Minutes
Public Access Opinion 13-7
A school board improperly took final action in a closed session and then ratified the improper action several meetings later during open session. During the closed session, six of the seven school board members who were present signed a separation agreement. The PAC found that signing a final separation agreement in closed session constituted a final approval by the board. While the board later took action and ratified the separation agreement in open session, the PAC found that the action taken in open session did not cure the closed session violation. That was because the school board failed to adequately inform the public of the nature of the matter under consideration prior to the vote. The PAC considered the board’s description of the matter under consideration to be vague and general because it called for a “vote to approve the separation agreement with the administrator.” Last, a reference to an administrator’s name, along with a vague reference to a “personnel matter,” violated the board’s duty to provide minutes with a “summary of discussion on all matters proposed, deliberated, or decided, and a record of any votes taken.” In addition, other violations were discussed, e.g., the verbatim recording requirement during closed session was not followed and/or failed during the closed sessions in question.

Duty to inform the public of the nature of the business under consideration prior to taking final action
Public Access Opinion 13-16
A public body’s motion “to approve the recommendation for dismissal of Employee A due to performance concerns” was insufficient to inform the public of the nature of the business under consideration prior to taking final action. The Public Access Counselor found that failing to identify the employee by name in the motion violated OMA. School boards should consult their attorneys for guidance about how to manage compliance with OMA while balancing an employee’s privacy interests.

Convenient location
Public Access Opinion 13-14
A public body’s special meeting 26 miles from its regular meeting location was found to violate the OMA requirement that such meetings must be convenient and open to the public. A meeting can be open to the public but still inconvenient if “the public, as a practical matter, would be deterred from attending it.” Here, the meeting was held outside of the district, 26 miles from its regular location, and at 9:00AM on a weekday as opposed to the usual 7:00PM. In addition, the public body did not claim that the meeting could not have been held at a suitable facility in the district. While the public body met other procedural OMA requirements and no action was taken at the meeting, the meeting was still found to violate OMA.

Brennan McLoughlin, IASB Law Clerk

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