May/June 2021

Legal Matters: Hot Mics Get Board Members in Trouble, But So Can Closed Session

By Maryam T. Brotine

News stories about people getting caught on a “hot mic” — being recorded speaking or doing something that they didn’t intend to become public — used to focus on public figures or celebrities. In our new normal of virtual meetings, hot mic trouble abounds for all types of people, including school board members. 

You may recall a story that went global in February 2021 when an entire California school board was caught making disparaging comments during a virtual meeting that they believed had not started live streaming. Their discussion started out benign, focusing on procedural matters, but eventually slid into the insensitive and profane, including comments such as “they want to pick on us because they want their babysitters back” and “my brother had a delivery service for medical marijuana and clientele were parents with their kids in school.” Shortly thereafter the board members discovered they were live streaming, with one stating “Uh oh…we have the meeting open to the public right now.” Though some board members issued apologies, they could not quell public outrage. The entire board resigned two days after the meeting. 

The California hot mic incident served as a stark reminder to school boards everywhere to mind their virtual meeting settings and their casual conversations. But it’s important for board members to remember to watch their words even when they know (or think) they are out of the public’s earshot in closed session. Why? Because, for various reasons, what you discuss in a closed session may not remain closed. 

The Leaky Board Member
First, there’s the possibility of a leaky board member — someone who, despite their Oath of Office, fiduciary duties, and obligation to keep closed meeting discussions confidential, shares what was discussed during closed session. This can happen by word of mouth or on social media (“You will not believe what Board Member X said in closed session at last week’s meeting”). If the board member is both leaky and sneaky, then it can also happen if the board member surreptitiously makes a recording of closed session and then leaks the recording. While in these cases the leaky board member certainly has their own actions to account for, the leaked material will be subject to public scrutiny and could get other board members in hot water.

Ordered Release of Closed Session Materials
Second, your board may be ordered to release its closed session minutes and verbatim recording if there’s a finding that the board violated the Open Meetings Act (OMA) by improperly going into closed session. Board members who have taken IASB’s OMA Training course may recall this being discussed toward the end of the online training module. A disclosure may be ordered by the Illinois Attorney General’s Public Access Counselor (PAC) or by a civil court. This is because any person may file a complaint with the PAC or in a civil court alleging an OMA violation, and a common remedy for improperly going into closed session is public disclosure of the closed session minutes and verbatim recording. This happened as recently as March 2021, in a PAC decision finding that an Illinois city council violated OMA by improperly using the closed session exception in Section 2(c)(11) of OMA to discuss a matter that “could potentially give rise to litigation” instead of using it as narrowly permitted by the exception for “probable or imminent” litigation. As a result of the violation, the PAC ordered the city council to release the closed session meeting minutes and its verbatim recording. (See Public Access Opinion 21-003.) The PAC ordered similar remedies in June 2020, October 2018, November 2017, June 2017, December 2016, and September 2016.

Criminal Charges for OMA Violations
Third, the county state’s attorney may bring a criminal complaint against an individual board member for violating OMA, which is a Class C misdemeanor. Does that really happen? Yes, actually, it does. In 2020, the Piatt County State’s Attorney’s office criminally charged five county board members over alleged OMA violations at a May 13, 2020 meeting after citizens complained that they were kicked off the virtual meeting platform when the board went into closed session and were then unable to reconnect after the board returned to open session. The criminal charges were eventually dropped in February 2021, but this case illustrates that criminal consequences for OMA violations are a real possibility.

Proceeding with Caution and Courage
Aside from proceeding with caution and watching your words at all times, what else can you do? One way to prevent being the subject of a negative hot mic headline is to constantly remind yourself of the sixth Foundational Principle of Effective Governance:

The board takes responsibility for itself.

The board, collectively and individually, takes full responsibility for board activity and behavior — the work it chooses to do and how it chooses to do its work. Individual board members are obligated to express their opinions and respect others’ opinions; however, board members understand the importance of abiding by the majority decisions of the board. 

As you apply this principle, keep equity and inclusion in mind. Respecting others’ opinions is easy when “others” are those who feel comfortable speaking up, but it’s important to intentionally make space for board members who do not. Invite these board members to share their opinions and thank them when they do. Cultivate an inclusive, safe space by establishing board protocols for communication. If you already have such protocols, it may be time to reevaluate them through an equity lens. 

Once you’ve done that, take the responsibility a step further. Flex your equity and inclusion muscles by acting. If you see disrespectful board member behavior, be an upstander by calmly and respectfully addressing it. This can be done with a gentle reminder such as “I can see that you’re [passionate/upset/angry] about this, but let’s remember this is a discussion and we need to hear various perspectives,” or “This is a heated issue, let’s dial down the temperature by going back to our board protocols.” Sometimes people don’t realize they are being disrespectful and simply asking “What do mean when you say…” or “Why do you say that?” will do the trick. If a question or gentle reminder doesn’t work, then you may need to be more direct by stating something like “I’m trying to understand you but I’m uncomfortable with your [swearing/tone of voice/volume].”

The more that board members upstand, the easier it becomes. Eventually, it can become part of your board’s culture. And if it doesn’t, then at least any hot mic headline will catch you trying your best instead of acting at your worst! 

Maryam T. Brotine is Assistant General Counsel with the Illinois Association of School Boards.