A member of the public submitted a request for review to the Illinois Attorney General's Public Access Counselor's office (PAC) alleging that the Village of Sauk Village Board of Trustees (Board) violated the Open Meetings Act (OMA) section 2.06(g) of OMA (5 ILCS 120/) during a public meeting by interrupting her public comment.  

Section 2.06(g) of OMA provides that "[a]ny person shall be permitted an opportunity to address public officials under the rules established and recorded by the public body." This provision "generally precludes a public body from imposing restrictions on public comment that are not set out in its established and recorded rules." Ill. Att'y Gen. Pub. Acc. Op. No. 23-013, issued September 13, 2023, at 3. Section 2.06(g) of OMA guarantees "an opportunity to address public officials" which implies the right to state the names of public officials so it is clear to whom the comments are directed and does not permit a public body to enforce public comment rules that impose unconstitutional restrictions on speech during public meetings. The PAC cited to a case in its opinion involving a school district which stood for the general rule that if a prohibition on the use of names of public officials and employees is intended to shield public officials from criticism, then those restrictions on such type of criticism during open meetings is deemed unconstitutional.” An open meeting of a public body typically constitutes a designated public forum where the first amendment to the United States Constitution ordinarily permits only "'reasonable time, place and manner restrictions on public participation" which are content-neutral and "serve a significant government interest[.]" Ill. Att'y Gen. Pub. Acc. Op. No. 14-009, at 4.

Here, the member of the public alleged that the Mayor interrupted her during public comment so that she could not state the names of Board trustees, turned off the audio system, and asked the Police Chief to remove her from the meeting. The Board’s response to the PAC cited two sections of the Village’s Municipal Code that dealt with failing to yield the floor after time has expired and another section that referred to Robert’s Rules of Order relevant to decorum at public meetings. 

The PAC noted that in general a public body would not necessarily violate section 2.06(g) of OMA by interrupting or stopping comments that are inflammatory that cause a disruption because the content is profane or insulting. However, the PAC distinguished the situation by the fact that the Mayor instigated a conflict with the member of the public by objecting to her use of the names of the trustees and stating that her time was expired even though her three minutes provided for under the Board’s public comment rules had not expired. The PAC found it unclear how section 2.06(g) could be satisfied by an established and recorded rule that prohibits speakers from stating the names of the members of the public body that they address. Section 2.06(g) of OMA does not permit a public body to enforce public comment rules that impose unconstitutional restrictions on speech during public meetings. The PAC concluded that the member of the public did not disrupt the order and decorum of the meeting and the Board violated section 2.06(g) of OMA.

A copy of the decision can be found here.

Note: To contrast this PAC opinion, a court of appeals for the Fourth Circuit (Court) (not covering Illinois and not binding on Illinois schools) upheld a school board's policy prohibiting public comments that target, criticize, or attack individual students, as long as it was applied in a nondiscriminatory manner.  In that case, the Board interrupted the speaker only when they violated the specific policy. The Court held that the Board’s meeting was a limited public forum and its policy was a reasonable restriction on speech.

A copy of the decision can be found here.

This binding opinion from the Illinois Attorney General’s Public Access Counselor (PAC) discusses an issue under the Freedom of Information Act (FOIA) of whether the Mattoon Police Department (Department) improperly charged a fee for redaction of responsive records. An individual requester sought copies of body camera video footage related to an incident he was involved in. The Department identified the records containing four to five hours of video footage and responded to the requester that the responsive video would have to be redacted. The Department indicated that the requester would have to submit payment in advance and offered to the requester the opportunity to narrow his request in order to reduce the cost assessed.  The requester responded by requesting an itemized cost estimate of charges the Department intended to charge. The Department responded with an estimate of $696.60 (for 4.5 hours of video footage at the rate of $2.58 per minute of redacting). The requester then filed a request for review with the PAC contesting that fee by arguing that the charges were based on redaction costs, which are not chargeable by statute.

It is the public policy of the State of Illinois that "all persons are entitled to full and complete information regarding the affairs of government." 5 ILCS 140/1. "It is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with this Act." Id. Section 1 of FOIA states that "[t]he General Assembly recognizes that this Act imposes fiscal obligations on public bodies to provide adequate staff and equipment to comply with its requirements." Id. "Subject to the fee provisions of Section 6 of this Act, each public body shall promptly provide, to any person who submits a request, a copy of any public record required to be disclosed by subsection (a) of this Section and shall certify such copy if so requested." 5 ILCS 140/3(b).

Section 6(a) of FOIA requires a public body to provide records maintained in an electronic format to the requester in the "electronic format specified by the requester, if feasible[,]" and limits the fees that a public body may charge to the actual cost the public body pays to purchase the recording medium, such as a USB flash drive or CD. Section 6(b) of FOIA details the fee provisions that apply to requests for paper copies of records, such as permitting a public body to charge "its actual cost for reproducing" records that are "in color or in a size other than letter or legal[.]"

Here, the PAC reviewed the record at issue and recognized that public bodies must incur fiscal obligations to comply with FOIA under section 1. Further, the PAC identified that FOIA restricts public bodies to assessing a fee only for the recording medium such as a Flash drive or CD under section 6(a).  The PAC determined that if the General Assembly had intended to allow a public body to charge fees to reimburse the actual cost it incurred to make redactions to copies of records in electronic format, like video footage, then the General Assembly would have expressly authorized such a fee in section 6(a) of FOIA. The PAC stated that, “[r]equiring a requester to reimburse a public body for expenses such as the cost of using redaction software cannot be reconciled with the plain language of sections 6(a) and 6(b) of FOIA and constitutes a restraint on access to information that contradicts the intent of FOIA.” The PAC found that the Department improperly assessed fees for redactions. The PAC directed the Department to take immediate and appropriate action to comply with the opinion by providing the requester with a copy of the withheld video footage, subject to appropriate redactions, and assessing him a fee of no more than the actual cost of purchasing a recording medium.

A copy of the decision can be found here.
 

A school district in Palatine, Illinois, terminated a high school social studies teacher with twenty years of experience following her racially insensitive posts after the police killing of George Floyd on her private Facebook account, which was followed by over 80 percent of former students and community members. Shortly after the teacher made the posts, the school principal began receiving complaints from current high school students, alumni, other teachers, and parents. The school district also received emails, calls, and media inquiries regarding the teacher's social media posts. The controversy that followed disrupted the school’s classroom discussions and summer classes. After investigating the matter and discussing at two school board meetings, the school district fired her, finding that the teacher violated four school district policies, including one that governed teacher conduct on social media and the school's “just and courteous professional relationships” policy, which she had been disciplined for violating twice before. 

Following her termination by the school district, she filed a civils rights lawsuit claiming she was unlawfully fired in retaliation for exercising her First Amendment right to freedom of speech. The district court denied her request for a preliminary injunction and dismissed her First Amendment claim, finding in favor of the school district on summary judgment, specifically that the school district's interests as a public employer outweighed the teacher’s speech rights under these circumstances. The 7th Circuit (Court) heard the case on appeal.

In order to succeed in a First Amendment retaliation claim, the teacher had to prove three things: (1) that she engaged in constitutionally protected speech; (2) that she suffered a deprivation likely to deter that protected speech and (3) that the speech was a motivating factor in her termination. The Court analyzed the facts of the case considering the first prong when a public employee “speaks as a citizen addressing a matter of public concern, the First Amendment requires a delicate balancing of the competing interests surrounding the speech and its consequences… [using a] list of seven factors that may be relevant to Pickering balancing:

(1) whether the speech would create problems in maintaining discipline or harmony among co-workers; (2) whether …the employment relationship is one in which personal loyalty and confidence are necessary; (3) whether the speech impeded the employee's ability to perform her responsibilities; (4) the time, place, and manner of the speech; (5) the context in which the underlying dispute arose; (6) whether the matter was one on which debate was vital to informed decision making; and (7) whether the speaker should be regarded as a member of the general public.” 

The Court explained that the role of teacher is a position of great public trust and authority, which makes the public employer’s interests even more compelling. The Court emphasized that “[i]n the public education context, the critical focus of each factor is “the effective functioning of the public employer’s enterprise.” (quoting Rankin v. McPherson, 483 U.S. 378, 388 (1987)). “Further, Hedgepeth’s “use of vulgar language” – i.e., jokes about excrement – weakens her speech interests since her role of public trust counsels instead for a “calm, reasoned presentation of her views on [a] sensitive subject” in order to be effective in the classroom and respected in the PHS community. (quoting Darlingh v. Maddaleni, 142 F.4th 558, at 566–67 (7th Cir. 2025)).  The Court noted that while the teacher was speaking on matters of public concern, the school has a legitimate business interest in addressing disruptions at school and giving consideration for possible future operations of the school. The Court disagreed with the teacher's argument that her posts were on her private social media account so that they should not be the basis for her termination; the Court found that her audience of Facebook friends primarily consisted of community members, with 80 percent being former students, and that audience actually amplified her speech.

The Court upheld the district court’s decision allowing for the termination of the teacher by holding that the teacher’s speech on her private Facebook account fell outside the scope of the First Amendment's protection as applied in the context of public employment.

A copy of the decision can be found here.
 

The Brownsburg Community School Corporation (District) in Indiana terminated a teacher for his refusal to follow the name policy on use of transgender students’ preferred pronouns. Brownsburg High School (Brownsburg) instituted a policy in 2017 mandating teachers to call students by their first names as they appeared in its database. For transgender students who had changed their first names, the database listed their new ones. John Kluge was a teacher at Brownsburg. He repeatedly objected to the school’s name policy on religious grounds. Kluge believed that calling transgender students names that conflicted with their biological sex encouraged their transgender identities which he considers a sin. He requested a religious accommodation, which was granted. Kluge was allowed to call students by only their last names. This lasted for about one school year, then the accommodation was rescinded. Kluge was told to either call the students by their first names as they appear in the school’s database or face termination. He attempted to work with the school and negotiate, but ultimately his resignation was accepted by the school board. He sued the District under Title VII for failing to accommodate his religion and retaliation.

An employer is required to accommodate an employee’s religious practices unless doing so would impose an “undue hardship” on its business. 42 U.S.C. § 2000e(j). At issue in this case is whether the impacts caused by Brownsburg’s accommodation of Kluge rise to the level of an undue hardship for the school under the new standard set in Groff v. DeJoy, 600 U.S. 447 (2023). The Seventh Circuit Court found that because material factual disputes exist, the district court’s grant of summary judgment to Brownsburg on Kluge’s accommodation claim was reversed and the case is being remanded for further proceedings.

Key takeaways from the case include that the Seventh Circuit found that facts were needed to determine the undue hardship question and summary judgment was not appropriate. The Seventh Circuit found that the district court should not have defined Brownsburg’s mission. Brownsburg is required on remand of the case to offer proof of its mission pre-dating Kluge’s request for accommodation. The Seventh Circuit, applying the higher standard of Groff to Brownsburg’s argument of undue hardship caused by accommodating Kluge’s religious beliefs, said Brownsburg had not produced undisputed facts demonstrating an “excessive” or “unjustifiable” hardship on its mission of “fostering a safe, inclusive learning environment for all.”

The Seventh Circuit found that whether the accommodation caused harm is unclear at this point and spent time explaining that evidence is needed to show whether the act of using last names in isolation caused objective, not subjective harm.  There was conflicting evidence on the sincerity of Kluge’s asserted religious beliefs due to the fact that Kluge used the first and last names of all students as they appear in the database during an awards ceremony for the orchestra. This was the only occasion on which he referred to transgender students by their chosen first names. Kluge explained he felt it would be “unreasonable and conspicuous” to refer to students by their last names at such a “formal event,” as opposed to the classroom setting. He acknowledged that using the transgender students’ chosen first names was “sinful” to him, yet he thought he was “making a good-faith effort to work within the bounds of” his last-name-only accommodation. Brownsburg argued that Kluge’s ability to use the names as they appeared in the database is evidence of his lack of sincerely held religious beliefs. The Seventh Circuit affirmed the district court’s denial of Kluge’s summary judgment motion on this question of sincerely held religious belief and held that a genuine issue of material fact exists regarding Kluge’s sincerity. 

As a second basis for undue hardship, Brownsburg presented that the last-name-only accommodation exposed it to an unreasonable risk of Title IX liability. It cited Seventh Circuit precedent for the proposition that schools are subject to liability any time they “treat[] transgender students differently than other students.” By contrast, Kluge asserted that by adhering to the last name-only practice, he “treated everyone the same,” so any liability was at most speculative. The Seventh Circuit found that Kluge, by adhering to the last-name-only practice, was not definitely treating transgender students worse than their classmates, or subjecting them to “increased stigmatization” and there remained questions of fact. Brownsburg did not show undisputed evidence that the accommodation placed the school on the “razor’s edge of legal liability,” under Title IX.  

Overall, the district court’s decision to not revisit Kluge’s retaliation claim was affirmed based on a waiver by Kluge of the argument. The Seventh Circuit affirmed the district court’s denial of summary judgment to Kluge based on factual disputes as to the sincerity of his religious beliefs. Because other factual disputes were found to exist on the undue hardship issue, the Seventh Circuit reversed the district court’s grant of summary judgment to Brownsburg as to the undue hardship caused by the accommodation and remanded the case for further proceedings on that topic consistent with the opinion. The Seventh Circuit granted the district court the discretion to decide whether to reopen discovery on remand.

A copy of the decision can be found here.
 

A member of the public submitted a request for review to the Illinois Attorney General's Public Access Counselor's office (PAC) alleging that the Village of Sauk Village Board of Trustees (Board) violated the Open Meetings Act (OMA) by failing to provide an adequate public recital before voting on an appointment to fill a vacancy on the Board.  

The PAC limited its opinion in accordance with OMA to reviewing whether the Board violated OMA and, if so, whether there is any necessary action for the Board to take to comply with the directive of this opinion. 5 ILCS 120/3.5(e). Section 1 of OMA states that "it is the intent of this Act to ensure that the actions of public bodies be taken openly and that their deliberations be conducted openly” and "that public bodies exist to aid in the conduct of the people's business and that the people have a right to be informed as to the conduct of their business." 5 ILCS 120/1. Section 2(e) of OMA provides that, "[n]o final action may be taken at a closed meeting. Final action shall 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 requirements of section 2(e) of OMA apply to all final actions taken by a public body. The Act does not define "final action." The PAC found through its analysis that decisions which bring matters to a resolution, regardless of the outcome of the vote, constitute final actions that must be made transparently because the public has a right to know how public officials conducted themselves. 

The Illinois Supreme Court has held that "under section 2(e) of the Open Meetings Act, a public recital must take place at the open meeting before the matter is voted upon; the recital must announce the nature of the matter under consideration, with sufficient detail to identify the particular transaction or issue, but need not provide an explanation of its terms or its significance." Bd. of Educ. of Springfield Sch. Dist. No. 186 v. Att'y Gen. of Illinois, 77 N.E.3d 625, 636 (2017). In that case, the Court concluded that the school board's public recital was sufficient because the Board president recited the general nature of the matter under consideration (a separation agreement and release) as well as specific detail sufficient to identify the particular transaction (the separation agreement was between the Board and the named Superintendent). See id. at 638.

In this case, the PAC determined that the Board’s vote on the proposed appointee resolved whether or not that individual would fill the vacancy on the Board. While the Board did not choose the new appointee at that meeting, it did decide not to fill the vacancy with the proposed appointee. Because that vote constituted a final action subject to the requirements of section 2(e) of OMA, the PAC determined that it must analyze whether the Board provided an adequate public recital before voting.

The PAC found the public recital that preceded the Board's vote indicated only that the Board would consider whether to appoint an unnamed individual to fill a vacancy on the Board. Although the reference to the appointment of a trustee announced the general nature of the matter under consideration, the public recital lacked information that was essential to inform the public of the particular business being conducted. Because the recital did not name or identify in any manner the individual whose appointment the Board considered, the public could not know whom the mayor proposed to fill the vacancy and whose appointment the Board rejected. The failure by the Board to identify that individual prohibited the public from assessing the mayor's proposed appointee and the Board's decision to reject them. 

The PAC concluded that the public recital that preceded the Board's vote indicated only the general nature of the matter under consideration and that the failure to identify the proposed appointee made the public recital inadequate because it deprived the public of a detail that was essential to inform the public of the business being conducted.

The PAC directed the Board to take immediate and appropriate action to remedy its violation of section 2(e) of OMA by amending the approved minutes of the meeting to include the name of the
proposed appointee.

A copy of the decision can be found here.