Recent Court Decisions

The Public Access Counselor (PAC) dismissed a complaint alleging that the McHenry County Board of Health (Board) violated section 2.06(g) of OMA during its meeting held on March 23, 2020.
 
The requestor stated in his request for review that the public had no opportunity to comment at the meeting. The agenda produced by the Board stated that it would hold a “virtual meeting” on March 23, 2020. A link was provided in the agenda so that members of the public could listen. The agenda also instructed the public to submit any comments or questions via email two hours prior to the meeting.
 
According to section 2.06(g) of OMA, “[a]ny person shall be permitted an opportunity to address public officials under the rules established and recorded by the public body.”
 
On March 9, 2020, the Governor of Illinois declared all counties in the state a disaster area in response to the outbreak of Covid-19. The Disaster proclamation will remain in effect for 30 days after issuance. In addition to the disaster proclamation, the Governor of Illinois also issued Executive Order 2020-07 on March 16, 2020. This executive order suspended the parts of OMA that require in-person attendance for meetings and set limitations on remote participation. On March 20, 2020, the Governor issued Executive Order 2020-10. Executive Order 2020-10 prohibited citizens from leaving their homes with certain exceptions and limited business operations.
 
The PAC said that it would be, “illogical to construe [OMA] as prohibiting a public body from meeting remotely during public health emergencies because the limitations of meeting in such a format may necessitate a temporary change in the public body’s method of allowing public comment.” The PAC also noted that section 2.06(g) of OMA doesn’t require public bodies to answer questions or to interact with the public. The PAC stated that allowing members of the public to submit questions via email was sufficient to satisfy section 2.06(g) of OMA. Given these facts and circumstances, the PAC determined that no further action was necessary in this matter.
 
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 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.