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School attorneys get update on Open Meetings Act, other laws

Case law in Rice v. Board of Trustees of Adams County regarding the Illinois Open Meetings Act stipulates that no final action may be taken by a school board on items or topics not specifically set forth on the board's agenda, according to Chicago attorney Patricia J. Whitten, of Franczek Sullivan, P.C. Whitten reminded an audience of school attorneys, however, that boards are allowed to "consider" items not on the agenda for the given board meeting, but the board can take no final action there on those items.

Whitten spoke at the 20th Annual School Law Seminar on Friday, Nov. 17, at the 2006 Joint Annual Conference in Chicago. The pre-conference event was sponsored by the Illinois Council of School Attorneys, an organization affiliated with Illinois Association of School Boards and the National School Boards Association. The event provides Illinois school attorneys with an opportunity to share information about key legal issues facing their school clients, including presentations this year on attendance limitations, employee speech, student conduct policies, student diversity, and special education.

Offering another interpretation of the 2002 Rice case was Steve Rotello from the Office of the Illinois Attorney General. Rotello said that "consideration" means "discussion, not a vote." Rotello told the audience of school attorneys no one is sure how specific an item must be in the way it is worded on the school board's agenda.

Rotello also said a closed session need not be listed on the agenda. But he was critical of boards that don't cite the reasons for going to a closed session. Boards must cite exceptions, meaning their reasons for moving to a closed session, citing them both publicly and in the minutes, Rotello said. He said that boards don't need to cite the statute providing the basis for the exception, just the exception itself.

Whitten advised the group that boards should avoid describing an item on the agenda as a "discussion of" a given topic, in case a board vote ensues. If the board's agenda limits the matter to discussion, its hands are tied, she said.

Rotello and Whitten also discussed another more recent case pertaining to the Illinois Open Meetings Act and its 2004 provision that requires verbatim recording (audio or video) of closed sessions of school board meetings. The 2006 case, Kodish v. Oakbrook Terrace Fire Protection District, specified that closed-session, tape-recorded discussions with legal counsel are not automatically exempt from disclosure. The case provided guidance on the application of legal privileges and examined the interplay between federal law and the Illinois Open Meetings Act.

But the court in this federal ruling ignored existing state law on attorney-client privilege, according to Rotello. "I'm highly confident this amendment would not have passed without the confidentiality provision," he added.

More recent case law regarding open meetings arises under a district court's 2004 decision in Gerwin v. Livingston County Board. The court in Gerwin instructed the board that an open meeting held in an inconvenient place, to the extent that public attendance is denied, violates the Open Meetings Act. The court stated that "a convenient meeting place [is] somewhere between the extremes of a broom closet and a football field."

Another seminar topic of interest to school boards dealt with enforcing student conduct policies and attendance requirements. Attorneys Darcy L. Kriha and Dana Crumley, both from the law firm of Ranczek Sullivan, P.C., told the audience that many recent legal developments can be helpful to schools in enforcing procedures requiring standards of student behavior and regular attendance.

One of the most useful tools for pursuing these goals, they said, is reciprocal reporting agreements between law enforcement agencies and schools. These typically call for sharing contact information and the designation of liaisons, both at the school and the police agency involved. This requires a two-way exchange of information about student crime and potential crime.

Kriha and Crumley also highlighted a recent technological development that allows schools to screen visitors to school buildings against sex offender and child murderer databases through "V-Soft" technology. School officials in almost every state are using the low-cost system to obtain an instant computerized identification, by swiping the visitor's driver's license.

The speakers also discussed efforts to discipline students for disruptive off-campus blog (Web log) entries and threats. They agreed that board policy is the key to successful discipline, as it must first authorize discipline for off-campus misconduct. But, there must also be a link established between the off-campus misconduct and some real disruption to the school. For example, if the blogger or numerous other students use a school computer to access an illicit Web site, there may be evidence of considerable disruption to the school day.

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