Recent Court Decisions

The Chicago Executive Airport Board of Directors (Board) did not violate OMA when it held a meeting on March 18, 2020. There was not a quorum of members physically present at the meeting. The chairman was present while six other executives participated via teleconference.
 
On March 19, 2020, a request for review was submitted to PAC. The requestor alleged that the Board violated sections 2.01 and 7(a) of OMA. Section 2.01 of OMA states that, “[a] quorum of members of a public body must be physically present at the location of an open meeting.” Section 7(a) of OMA states that a member may be allowed to attend a meeting by other means (video or audio conference) because of certain enumerated reasons if a quorum of members are physically present.
 
This meeting took place under special circumstances. Under normal circumstances, the six executives would not have been able to attend remotely. However, the Governor of Illinois declared all counties of Illinois as a disaster area on March 9, 2020, and issued Executive Order 2020-07 on March 16, 2020 in response to the outbreak of COVID-19. Executive Order 2020-07 suspended sections 2.01 and 7(a) of OMA for the duration of the Gubernatorial Disaster Proclamation. Executive Order 2020-07 and the disaster proclamation were in effect at the time of the meeting. Therefore, the meeting was lawful and no further action was needed.
 
Note: We have summarized this non-binding opinion as it may help districts understand how the PAC is interpreting Executive Order 2020-07 on OMA.

The Newton City Council (City) violated OMA by approving an ordinance without providing sufficient advance notice of that final action on the meeting agenda.

On its August 20, 2019 meeting agenda, the City listed the following as Agenda item 8.d.: “[c]onsider and act on Ordinance 19-11 to Amend Section 33-4-4(F).” The agenda did not specify what Ordinance 19-11 concerned and this omission was submitted to the PAC for review.

Section 2.02(c) of OMA states that, “[a]ny agenda required under this Section shall set forth the general subject matter of any resolution or ordinance that will be the subject of final action at the meeting.” The PAC noted that while the term “general subject matter” is ambiguous, legislative debate on Section 2.02(c) indicates the General Assembly intended that agendas provide sufficient detail to notify members of the public of the types of final actions public bodies anticipate taking at their meetings. Because Agenda item 8.d. only provided an ordinance number and did not identify the general subject matter at issue – application fees for permits - or incorporate the relevant City Code provision by reference or hyperlink, the City violated Section 2.02(c). As a result, the PAC ordered the City to reconsider its August 20, 2019 final action on the fee ordinance at a properly noticed meeting with an agenda containing the general subject matter of that ordinance.

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

The United States Court of Appeals for the Seventh Circuit (Court) dismissed a former assistant principal’s claims that she was forced to resign in retaliation for speech about a student discipline matter, which she alleged violated her First Amendment free speech rights and Fourteenth Amendment due process rights.
 
In August 2014, Plaintiff Lisa Ulrey (Ulrey) was employed by Manchester Community Schools (the District) as an assistant principal where her written job description included duties to “coordinate and administer student attendance and discipline policies.” Ulrey learned that the District’s superintendent had granted an adult student permission to possess cigarettes (but not smoke them) on school grounds even though this was prohibited by District policy. Ulrey disagreed with this decision and contacted the School Board president. The School Board president then contacted the superintendent, who rebuked Ulrey for going over his head and threatened to reprimand her if she did not apologize. Ulrey apologized. Three months later, in November 2014, Ulrey was called to a meeting with the superintendent regarding errors with Ulrey’s administrative license. The superintendent requested that Ulrey resign and she did, using a letter of resignation the superintendent had prepared for her. Ulrey’s resignation was promptly approved the School Board.
 
Reviewing these facts, the Court found that Ulrey spoke to the School Board president as an employee pursuant to her official duties, not as a private citizen. As a result, Ulrey’s First Amendment claim failed because her speech was considered constitutionally unprotected as a matter of law. Regarding Ulrey’s Fourteenth Amendment due process claim, the Court noted the general rule that “an employee who resigns – voluntarily relinquishing her interest in continued employment – may not complaint of a lack of due process” unless one of two narrow exceptions exists: 1) constructive discharge, which is akin to a hostile environment work claim, or 2) coerced resignation, which “is characterized by the presence of a Hobson’s choice in which the employee must resign or suffer severe consequences, such as facing criminal charges.” The Court found that neither of these exceptions existed, even if Ulrey thought the superintendent’s “vibes” and “physical demeanor” indicated he wanted to fire her.
 

In August 2015, journalist Bruce Rushton (Rushton) filed a FOIA request with the Illinois Department of Corrections (DOC) seeking all settlement agreements connected with the death of an inmate, including any agreements involving private entities charged with providing health care to the inmate, such as Wexford Health Services (Wexford). DOC did not have a copy of the settlement agreement and requested it from Wexford. Wexford begrudgingly turned over a redacted copy of the settlement agreement but refused to turn over an unredacted copy. DOC then provided Rushton with the redacted copy. Rushton then filed suit in the Sangamon County Circuit Court (Circuit Court) against DOC for violating FOIA, and Wexford intervened. At issue was whether Section 7(2) of FOIA applied to the settlement agreement. Section 7(2) provides that:
 
A public record that is not in the possession of a public body bus is in the possession of a party with whom the agency has contracted to perform a governmental function on behalf of the public body, and that directly relates to the governmental function and is not otherwise exempt under this Act, shall be considered a public record of the public body.
 
Wexford argued the settlement agreement did not “directly relate” to the governmental function it performed for DOC because it “simply memorializes its independent business decision to settle a legal claim.” Rushton argued the opposite, reasoning that the settlement related to a claim that Wexford failed to properly perform its governmental function (providing medical care to prisoners). The Circuit Court agreed with Wexford, Rushton appealed, and the appellate court reversed.
 
Wexford then appealed to the Illinois Supreme Court (Supreme Court), where it again argued that the settlement agreement did not “directly relate” to its governmental function and also argued that the settlement agreement was not a “public record” under Section 2.20 of FOIA. Section 2.20 states:
 
All settlement agreements entered into by or on behalf of a public body are public records subject to inspection and copying by the public, provided that information exempt from disclosure under Section 7 of this Act may be redacted.
 
Wexford asserted that because Section 2.20 does not mention private contractors, it did not apply to them. Looking to the intent of FOIA, the Supreme Court found that public records are presumed to be open and accessible, meaning that FOIA is to be accorded liberal construction and its exemptions are to be construed narrowly. It further stated that Section 2.20 could not be read in isolation from Section 7(2), and held that the legislature intended settlement agreements to be public records. The Supreme Court was also not swayed by Wexford’s argument that the settlement agreement did not “directly relate” to its governmental function, holding instead that the connection was both “direct and obvious.” The Supreme Court ruled the settlement agreement was disclosable, and remanded the matter to the Circuit Court to review whether any portions of the settlement agreement should be redacted as exempt under various other provisions of FOIA. This case serves as a reminder to public bodies that settlement agreements are broadly construed to be disclosable under FOIA, regardless of whether the agreement was entered with a private contractor so long as the contractor was performing a governmental function.

In 2015, tenured teacher Timothy Burgess (Burgess) was dismissed from his teaching position by the Board of Education of Ottawa Township High School District No. 140 (Board). Burgess appealed the Board’s decision and a tenured teacher dismissal hearing was held pursuant to Article 24 of the School Code. Following a three-day hearing, Ill. State Board of Education hearing officer Danielle Carne (Carne) found that Burgess’s conduct did not violate the prohibitions and mandates he had previously been issued via a Notice to Remedy in 2009. As a result, Carne recommended that the Board reverse its dismissal of Burgess. The Board believed Carne’s findings and conclusions were flawed, so it rejected her recommendation and upheld its dismissal of Burgess.
 
Burgess filed a complaint for administrative review in the circuit court. Upon review, the circuit court found that while the Board was wrong to find that Carne’s findings were erroneous, Burgess’s conduct was not remediable. Accordingly, the circuit court affirmed the Board’s dismissal of Burgess.
 
Burgess then appealed to the Third District Appellate Court (Court). The Court employed a two-part process to review the dismissal. First, it reviewed the Board’s supplemental factual findings, as well as Carne’s factual findings that were incorporated, unmodified, into the Board’s decision, to determine whether those findings were against the manifest weight of the evidence. Second, it applied the clearly erroneous standard of review to determine whether the Board’s findings of fact provided a sufficient basis for its conclusion regarding whether Burgess should be dismissed or retained.
 
Reviewing the evidence, the Court found that the Board’s supplemental factual findings were against the manifest weight of the evidence, in part because the Board “went to great lengths” to discredit witnesses that favored Burgess while disregarding discrepancies that weighed against the credibility of the administration’s witnesses. The Court further found that the Board’s decision to dismiss Burgess was clearly erroneous. In doing so, it noted that the 2009 Notice to Remedy concerned displays of anger by Burgess in front of staff, parents, students, Board members, and the public – thus it related to Burgess’s fitness as a teacher and the school’s interests in maintaining discipline and operating effectively. In contrast, the conduct that allegedly violated the Notice to Remedy (and which formed the basis for the 2015 dismissal) occurred in private contexts at closed-door union meetings. Though the Court did not condone Burgess’s conduct at those meetings, it held that “no logical nexus exists between this conduct and Burgess’s fitness to perform as a teacher.” Accordingly, the Board’s dismissal decision was arbitrary, unreasonable, and clearly erroneous. The Court reversed the Board’s dismissal of Burgess and remanded the case to circuit court for further proceedings consistent with its decision.