Agenda Must State General Type of Employee and Personnel Transaction When Taking Final Action on Severance Agreement
On January 5, 2023, Requestor submitted a Request for Review to the Public Access Counselor (PAC) alleging that the Board of Education of Township High School District 214 (“Board”) had violated Open Meetings Act (OMA) Sec 2.02(c) during its September 15, 2022 meeting by taking final action to approve a severance agreement with an assistant superintendent without setting forth the general subject matter of that final action on the meeting agenda.
The agenda for the September 15, 2022 meeting indicated that the Board would adjourn to closed session to discuss “the appointment, employment, compensation, discipline, performance, or dismissal of specific employees of the public body,” which is proper under Sec. 2(c)(1). It also indicated that the Board would reconvene in open session to take final action, which is required under Sec. 2(e). The meeting minutes posted online on October 25, 2022 state that the Board approved “Personnel Report Transaction II”. However, neither the agenda nor the minutes indicated that the Board was approving a severance agreement involving a payout of $183,274 to an assistant superintendent who had been with the district since 2013.
First, the PAC found that Requestor’s Request for Review was timely. Sec 3.5(a) states that one may file a request for review within 60 days of the alleged OMA violation. However, Sec 3.5(a) also states that if one using reasonable diligence only discovers facts about the violation after the 60-day period but before two years after the violation, they may still file a request for review within 60 days of the discovery. In this case, the PAC noted that the agenda and meeting minutes were sufficiently vague that a person using reasonable diligence would not have known about the severance agreement. Requestor only learned about the severance agreement from newspaper articles published in December 2022. Since his request was made within 60 days of his discovery, it was timely under Sec 3.5(a).
Second, the PAC found that the Board had violated Sec. 2.02(c) of OMA. Sec 2.02(c) requires that agendas must set forth the general subject matter of any resolution or ordinance that will be the subject of final action at a meeting. The PAC noted that the “general subject matter” must be sufficiently descriptive to provide advance notice to the public. In this case, the agenda did not mention either the general type of employee or general type of personnel transaction. The public could not have known that the Board intended to take final action on a $183,274 severance agreement, which was significant and plainly distinguishable from other routine personnel transactions.
The PAC ordered the Board to re-vote the severance agreement at an open meeting with a sufficiently detailed agenda item. For future personnel transaction approvals, the Board is also required to note the general type of employee and general type of personnel transaction on the agenda.
This opinion is binding only to the parties involved and may be appealed pursuant to State law.
Michelle Yang, IASB Law Clerk