The Illinois Appellate Court for the 2nd District (Court) considered an appeal from the Circuit Court of Lake County (Circuit Court) and affirmed the dismissal of a tenured teacher for sexual harassment of a student as irremediable conduct, denying the teacher’s complaint for administrative review seeking reinstatement.
 
Lance Pacernick (Plaintiff) began working for Waukegan CUSD No. 60 (District) during the 2002-03 school year as a teacher and served as head coach of the Waukegan High School girls’ track team from January 2014 through March 2017. In March 2017, a member of the girls’ track team reported that Plaintiff had touched some of the girls on the buttocks. The District promptly began a thorough investigation into the allegations, headed by the Title IX Coordinator. On the first day of the investigation, the District held a due process meeting with Plaintiff and his union representative and placed Plaintiff on paid administrative leave pending the investigation. A few weeks later a second due process meeting was held with Plaintiff and his union representative, during which Plaintiff was informed of, and denied, the allegations. Plaintiff then submitted a written statement denying the allegations, and he was provided with redacted statements from 48 current and former students interviewed during the investigation. Four students reported unwelcomed touching on their buttocks, seven reported receiving inappropriate verbal comments, 17 witnessed unwelcomed touching and/or comments to their teammates, and eight reported feeling discomfort or suspecting “other” intentions from Plaintiff. Five of these students were also in Plaintiff’s English class. On April 19, 2017, Plaintiff’s dismissal was recommended to the Superintendent, who approved the presentation to the Board of Education (Board). On April 21, 2017, a third due process meeting was held with Plaintiff where he was informed his dismissal would be recommended to the Board.
 
On May 9, 2017, the Board received a two-page Executive Summary of the allegations against Plaintiff and the investigation’s findings, as well as a three pages of Supporting Documents that included a factual timeline of the investigation, summary of a 2012 investigation, and summary of relevant Board policies. The Investigator recommended that the Board terminate Plaintiff for sexual harassment of female students and the Board unanimously approved the recommendation. On May 16, 2017, the Board gave Plaintiff a nine-page Notice of Charges with a Bill of Particulars, informing Plaintiff that the Board unanimously approved his dismissal. Notably, the Bill of Particulars related a May 2012 incident that had been unfounded but that had clearly put Plaintiff on notice that “care in [his] dealings with female students was necessary and that sexual misconduct of any nature with students is intolerable and a potential basis for discipline.” Despite this 2012 warning, Plaintiff did not change his behavior or exercise sufficient care. The Bill of Particulars also noted that Plaintiff’s continued denial of the allegations in the face of “voluminous accounts of inappropriate incidents” showed a lack of candor that “buttressed negative conclusions about [his] character and [his] conduct.” As a result, the Board concluded that Plaintiff’s conduct was irremediable, having a negative impact on the teaching profession and psychologically harmful to students.
 
Plaintiff chose to have a tenured teacher dismissal hearing, which began in December 2017 before an Illinois State Board of Education hearing officer and involved the testimony of 16 witnesses for the Board. Plaintiff did not put on a case. In an October 2018 decision, the hearing officer found that the Board had proven that Plaintiff engaged in the charged offenses and that these offenses were sufficient for dismissal under the School Code (105 ILCS 5/24-12(d)(1)). Regarding whether Plaintiff’s conduct was remediable, the hearing officer noted the test was whether: 1) damage was done to the students, faculty, or school, and 2) the conduct could have been corrected had the teacher been warned. The hearing officer found Plaintiff’s conduct had harmed both the students and school, and that Plaintiff’s conduct would likely not have been corrected if he had received a warning because he had already received a warning in 2012 about getting too close to students. Accordingly, the hearing officer recommended that Plaintiff be dismissed. On December 11, 2018, the Board adopted the hearing officer’s findings and dismissal recommendation, and it notified Plaintiff of this on December 12, 2018. Plaintiff sought administrative review of the Board’s decision, and on October 8, 2019, the Circuit Court affirmed the Board’s findings and its dismissal of Plaintiff. Plaintiff then appealed to the Circuit Court.
 
On appeal, Plaintiff argued that the Board erred in dismissing him because: 1) they erroneously found he had sexually harassed track team members and that his conduct was irremediable, and 2) the Board had not strictly complied with required procedures for dismissing a tenured teacher for cause because it never approved a motion with specific charges and did not timely mail to Plaintiff a Notice of Charges and Bill of Particulars.
 
The Court first reviewed whether the Board’s factual findings were against the manifest weight of the evidence, and whether those findings provided a sufficient basis for dismissal. Generally a Board’s decision is reviewed, but because the Board adopted the hearing officer’s decision, the Court reviewed the hearing officer’s decision to determine if it was erroneous. The School Code only allows a tenured teacher to be dismissed for cause. Though the School Code does not define “cause,” case law has defined it as “that which law and public policy deem as some substantial shortcoming which renders a teacher’s continued employment detrimental to discipline and effectiveness.” Thus, a school board has the power to dismiss a teacher for various reasons, including incompetency, cruelty, negligence, immorality or other sufficient cause. A school board must prove there is cause for dismissal by a preponderance of the evidence. After reviewing the hearing record, the Court determined that the Board’s conclusion that Plaintiff sexually harassed female students and that this was sufficient cause for dismissal was not erroneous. Moreover, the Court found that the Board correctly determined Plaintiff’s conduct violated its policies – most significantly its policy prohibiting sexual harassment.
 
Next, the Court considered whether Plaintiff’s conduct was irremediable. The Court used the same test for determining whether cause for dismissal is irremediable as the hearing officer had used: 1) whether damage has been done to students, faculty, or school, and 2) whether the conduct resulting in that damage could have been corrected had the teacher’s superiors warned the teacher. To meet the first prong, the Board had relied only on the students’ testimony about the damage that was done – and the Court found no error with the Board’s analysis. To meet the second prong, the Board had determined Plaintiff was unlikely to fix his behavior because had had already been warned in 2012 – and the Court found no error with this analysis either. The Court succinctly stated “the harm Plaintiff caused here by his demeaning treatment of the students who were entrusted to his care cannot be undone or corrected.”
 
Third, the Court considered Plaintiff’s argument that the Board hadn’t strictly complied with required procedures. Section 24-12(d)(1) of the School Code requires that a board seeking dismissal of a tenured teacher “first approve a motion containing specific charges” and then provide the teacher with “written notice of such charges, including a bill of particulars” by mail and also by certified mail or personal delivery within five days of adoption of the motion. Plaintiff claimed the Board’s Executive Summary wasn’t a “motion” with “specific charges” because it described his conduct as sexual harassment but didn’t provide context, so it was an incomplete and misleading presentation to the Board. The Court disagreed, finding that both the two-page Executive Summary and three pages of Supporting Documents, despite their titles, reasonably apprised Plaintiff of the allegations against him as required by the School Code. As for the five-day timeline, the Court found that strict compliance was not necessary here, where there was only a one-day delay and the delay didn’t cause prejudice to Plaintiff because he was able to have a hearing and was represented by counsel. The Court affirmed the Circuit Court’s decision upholding the Board’s dismissal of Plaintiff.
 

The PAC held that the Board of Trustees (Board) of the Village of Roanoke violated OMA during a remotely held meeting on September 8, 2020 when it muted a discussion of public business.
 
On September 8, 2020, the Board held a remote meeting via Zoom. Two days later, a member of the public submitted a Request for Review with the PAC, asserting that the Board President had asked another Board member to mute all microphones during a discussion with the Roanoke Village Ambulance Chief and that at this time, the Board did not announce it was entering closed session or otherwise provide an explanation for why all microphones were muted.
 
The PAC construed this as an allegation that the Board violated Sections 2(a) and 7(e)(4) of OMA. Section 2(a) of OMA requires that all meetings of public bodies be open to the public unless a specific exception applies. Section 7(e) of OMA permits public bodies to hold a remote meeting during a public health emergency (such as the current COVID-19 pandemic), and Section 7(e)(4) requires that when such a remote meeting is held, the public body must “allow any interested member of the public access to contemporaneously hear all discussion, testimony, and roll call votes, such as by offering a telephone number or web-based link.”
 
The PAC requested that the Board explain how the public was allowed to connect to the September 8, 2020 remote meeting, and to provide copies of the agenda, minutes, and verbatim recording of it. The Board responded that it complied with Section 7(e) of OMA by livestreaming the meeting on Zoom, which allowed for public attendance and participation, but acknowledged that the meeting livestream was muted for approximately one minute. The Board explained that this one minute was essentially a “sidebar” between the Mayor and Village Clerk regarding the appropriateness of discussing a personnel matter in open session or closed session. The Board asserted this one minute “sidebar” did not violate Section 7(e) because it “is not uncommon for sidebars to occur during a public meeting to clarify a matter of procedure” but assured the PAC that it would not mute any future sidebars. 
 
The PAC concluded that Section 7(e)(4) “expressly and unambiguously requires that members of the public be able to contemporaneously hear all open session discussion” and it does not provide an exception for a “sidebar.” The PAC held that because members of the public could not contemporaneously hear the one minute muted discussion, the Board violated Section 7(e)(4) of OMA. To remedy this violation, the PAC directed the Board to make publicly available the complete verbatim record of the open session portion of the September 8, 2020 meeting.  
 
This opinion is binding only to the parties involved and may be appealed pursuant to State law.

An Illinois Appellate Court found, once again, that public officials’ personal text messages and emails that are prepared for, used by, received by, or in the possession of a public body are public records for purposes of FOIA.

The Illinois Appellate Court in the First District affirmed a circuit court order which directed the City of Chicago Office of Mayor (Mayor’s Office) and Chicago Department of Public Health (CDPH) to inquire whether records exist pertaining to the presence of lead in the drinking water at Chicago Public Schools (CPS).
 
On June 7th, 2016, the Better Government Association (BGA) submitted a FOIA request to the Mayor’s Office and CDPH requesting “any and all communication between [the] Public Health Commissioner…and anybody in the mayor’s office and press office from April 1, 2016 to today.” The request was later modified to include “anything related to lead and CPS” and “any and all communication” between the Public Health Commissioner and other CPS officials. The Defendants (Mayor’s Office and CDPH) produced records but redacted or withheld others on the grounds that they were protected by Section 7.1 of FOIA.
 
On April 11th, 2017, the BGA filed a complaint in the circuit court. They argued that the Defendants violated FOIA by redacting and withholding the responsive records. The Plaintiffs (BGA) also argued that the Defendants improperly failed to inquire whether personal text messages and emails of the officials named in the requests contained responsive records.
 
The Defendants claimed that the redactions and withholdings were proper in their answer. The Mayor’s Office acknowledged that the officials named in the request used their personal email accounts for public business, but contended that it did not have the ability or any obligation to search the accounts for the responsive records.
 
On August 21, 2017, the Plaintiffs filed a partial motion for summary judgement. After hearing arguments from both sides, the circuit court held that the Defendant’s redactions were proper. However, the circuit court also held that the Defendants did not perform a reasonable search of the relevant officials because the personal text messages and emails were omitted.
 
To rectify this, the circuit court ordered the Defendants to “make inquiries as required to email custodians and supply affidavits from custodians regarding same” within 28 days. The Defendants went on to appeal the order.
 
In his opinion, the Honorable Michael T. Mullen stated that the Defendants did not cite a specific statutory exemption to make their case. Instead, they insisted that the personal text messages and emails did not constitute public records. To test this claim, Judge Mullen used two criteria (established in City of Danville v. Madigan, 421 Ill.Dec. 792 (2018)) that must be met to determine if the responsive records are public and therefore subject to disclosure under FOIA. First, the record must pertain to public rather than private business. Second, the record “must have been either (1) prepared by a public body, (2) prepared for a public body, (3) used by a public body, (4) received by a public body, (5) possessed by a public body, or (6) controlled by a public body.”
 
Judge Mullens found that the personal text messages and emails were “either prepared for, used by, received by, or in the possession of a public body,” which was sufficient to establish them as public records. For these reasons, the circuit court’s order was affirmed.
 

The PAC held that the Illinois Department of Corrections (IDOC) violated FOIA when it denied a request for data on head injuries of inmates in its custody.
 
On March 15, 2020, a Requestor submitted a FOIA request to IDOC seeking "access to and a copy of aggregate data on head injuries incurred since 2015 by inmates in [IDOC] custody, including time and place of injury, type or severity of injury, and cause of injury.” The request also sought, “records reflecting the department’s policies…regarding evaluating concussions or traumatic brain injuries for inmates and correctional officers or other employees when these happen within correctional facilities.”
 
IDOC responded that it did not have the requested data or policies, and claimed that since the requested records were furnished by their healthcare vendor, Wexford Health Sources, Inc. (Wexford), they were exempt from disclosing any responsive records it might have pursuant to Section 7(1)(g) of FOIA. Requestor submitted a Request for Review contesting the denial, and contended that the records were in fact subject to disclosure pursuant to Section 7(2) of FOIA.
 
Section 7(1)(g) of FOIA exempts, “[t]rade secrets and commercial or financial information obtained from a person or business where the trade secrets or commercial or financial information are furnished under a claim that they are proprietary, privileged or confidential, and that disclosure of the trade secrets or commercial or financial information would cause competitive harm to the person or business, and only insofar as the claim directly applies to the records requested.”
 
Section 7(2) of FOIA states that, “[a] public record that is not in the possession of a public body but 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[.]”
 
After completing its review, the PAC concluded that IDOC did not establish how the requested records constituted trade secrets, commercial or financial information, or how they would cause competitive harm to Wexford. The PAC held that since Wexford was contracted by IDOC to carry out duties for a public body (i.e. furnishing data), they were obligated to release the requested records. The PAC directed IDOC to release the responsive records to the requestor.
 
This opinion is binding only to the parties involved and may be appealed pursuant to State law.

Summary: The Winnebago County Sheriff’s Office violated FOIA when it improperly withheld records relating to a police chase.
 
On March 9th, 2020, the Requestor, a staff writer for the Rockford Register Star, submitted a FOIA request to the Rockford Sherriff’s Office (Sherriff’s Office). The request sought, “[a] copy of any squad car camera footage before, during, and after the Feb. 8, 2016, police chase and fatal crash that killed [a named individual], emergency dispatch audio concerning that case, crash and incident, and any written critique, review or report concerning the attempted traffic stop and fatal crash.”
 
A few weeks later, the Sherriff’s Office denied the FOIA request pursuant to Section 7(1)(d)(iii) of FOIA, citing a pending civil lawsuit related to the crash. The Sherriff’s Office said that, “disclosure would deprive both the County of Winnebago and [the] Sherriff’s Deputy…of their rights to a fair trial or an impartial judication.” Requestor then sent a Request for Review to the PAC to contest the denial of the request.
 
Section 7(1)(d)(iii) of FOIA exempts public bodies from disclosing information that might jeopardize a fair trial. Specifically, it states that, “[r]ecords in the possession of any public body created in the course of administrative enforcement proceedings, and any law enforcement or correctional agency for law enforcement purposes, but only to the extent that disclosure would…create a substantial likelihood that a person will be deprived of a fair trial or an impartial hearing” are exempt from disclosure. Under Section 1.2 of FOIA, any public body asserting that a record is exempt from disclosure must prove the exemption with clear and convincing evidence.
 
According to the PAC, the explanation from the Sherriff’s Office did not satisfy the requirements of Section 7(1)(d)(iii) of FOIA because the Sherriff’s Office did not provide any specific reasons as to why the disclosure of the materials requested would impede a fair trial or impartial hearing. For this reason, Sheriff’s Office did not demonstrate by clear and convincing evidence that the records were exempt from disclosure. The PAC ruled that the Sherriff’s Office violated FOIA, and it directed the Sherriff’s Office to comply with the request.
 
This opinion is binding only to the parties involved and may be appealed pursuant to State law.