The Chicago Executive Airport Board of Directors (Board) did not violate OMA when it held a meeting on March 18, 2020. There was not a quorum of members physically present at the meeting. The chairman was present while six other executives participated via teleconference.
 
On March 19, 2020, a request for review was submitted to PAC. The requestor alleged that the Board violated sections 2.01 and 7(a) of OMA. Section 2.01 of OMA states that, “[a] quorum of members of a public body must be physically present at the location of an open meeting.” Section 7(a) of OMA states that a member may be allowed to attend a meeting by other means (video or audio conference) because of certain enumerated reasons if a quorum of members are physically present.
 
This meeting took place under special circumstances. Under normal circumstances, the six executives would not have been able to attend remotely. However, the Governor of Illinois declared all counties of Illinois as a disaster area on March 9, 2020, and issued Executive Order 2020-07 on March 16, 2020 in response to the outbreak of COVID-19. Executive Order 2020-07 suspended sections 2.01 and 7(a) of OMA for the duration of the Gubernatorial Disaster Proclamation. Executive Order 2020-07 and the disaster proclamation were in effect at the time of the meeting. Therefore, the meeting was lawful and no further action was needed.
 
Note: We have summarized this non-binding opinion as it may help districts understand how the PAC is interpreting Executive Order 2020-07 on OMA.

The United States Court of Appeals for the Seventh Circuit (Court) dismissed a former teacher’s claim that she was given an “unsatisfactory” performance rating in retaliation for speech she engaged in while acting as the union’s representative, which she alleged violated her First Amendment free speech rights, but it remanded her case for further proceedings to determine if she was afforded Fourteenth Amendment due process rights.
 
Plaintiff Carolyn Mascow (Mascow) was a tenured teacher employed by Franklin Park School District No. 84 (the District) in 2017 when she was laid off. Her latest performance evaluation at the time was “unsatisfactory,” meaning she was first in line for layoff when the school lost one position and she was not eligible for recall if the school began hiring again, which it did. Mascow sued the District, alleging that she was given the “unsatisfactory” performance rating in retaliation for two positions she took when acting as union co-president, the first in the summer of 2014 and the second in the summer of 2015.
 
The district court, in reviewing Mascow’s First Amendment claim, held that a reasonable jury could not find that the 2014 and 2015 acts led to Mascow’s 2017 “unsatisfactory” performance rating. In so ruling, it pointed out that Mascow began serving as co-president in 2010, when she met with school officials often and initially had good performance ratings. Moreover, Mascow’s co-president (who was also involved in the 2015 matter) had received an “excellent” performance rating. As for Mascow’s Fourteenth Amendment claim, the district court found that even though Mascow had a property interest in her job, Illinois does not offer hearings to laid-off teachers. Because Mascow did not have a right to a hearing, it found that she did not have a property right either and lacked a constitutional claim.
 
Reviewing these facts and the district court’s decision, the Court agreed with the district court’s conclusion regarding the First Amendment claim. The Court, however, was not persuaded by the district court’s reasoning on the Fourteenth Amendment claim that if someone does not have a State right to a hearing then it “knocks out” a due process claim under federal law. Instead, the Court focused on the fact that Mascow received her “unsatisfactory” performance rating one month before being laid-off and it inquired whether she had an opportunity for a hearing regarding the adverse rating. Though neither State law nor the District offers a formal process for contesting an adverse rating, the litigants agreed that teachers have informal opportunities to seek review. The District contended that an opportunity for face-to-face discussions and written submissions regarding ratings supplies all the due process required for an adverse evaluation, but Mascow responded that she had asked the Superintendent to raise her rating yet he “refused to even entertain the possibility.” Because the record before the Court did not address how teachers can obtain review of their ratings and whether those opportunities would satisfy constitutional due process requirements for some kind of hearing, the Court vacated the district court’s decision on the Fourteenth Amendment claim and remanded it for further proceedings.
 

Kankakee County (County) violated Section 3(d) of FOIA by failing to respond to a FOIA request.

On October 21, 2019, Requestor emailed a FOIA request to the County, seeking copies of agreements between the County and World Fuel Services, Inc., as well as any ordinances/resolutions passed by the County authorizing any agreement and/or amendment between them. Requestor did not receive a response to his request.
On October 30, 2019, Requestor submitted a Request for Review to the PAC, alleging that the County failed to respond to his FOIA request. On November 7, 2019, the PAC forwarded a copy of the Request for Review to the County and asked the County whether or not it had received and responded to Requestor’s request. The County did not respond to the PAC. The PAC sent another letter to the County on December 3, 2019, and the County again failed to respond. Finally, on December 12, 2019, the County emailed Requestor stating the County was still “trying to locate” responsive records and apologizing for the delay. As of the date of this binding opinion, neither the PAC nor Requestor received a response from the County.

Section 3(d) of FOIA states that “each public body shall, promptly, either comply with or deny a request for public records within 5 business days after its receipt of the request…” Because the County did not comply with Section 3(d), the PAC ordered the County to take immediate and appropriate action to provide Requestor with all records responsive to his request, subject only to permissible redactions.

This opinion is binding only to the parties involved and may be appealed pursuant to State law.

The Village of Sauk Village (Village) violated OMA by failing to approve minutes of three meetings within the time periods required by OMA.

At its regular meeting on November 12, 2019, the Village approved minutes from its September 10, 2019 regular meeting, its September 10, 2019 special meeting, and its September 17, 2019 Committee of the Whole meeting. Section 2.06(b) of OMA requires that public bodies “approve the minutes of its open meeting within 30 days after that meeting or at the public body’s second subsequent regular meeting, whichever is later.” Section 2.06(b) further requires that approved minutes be made available for public inspection within 10 days after approval by the public body.

Responding to the PAC’s inquiry, the Village admitted it had failed to approve minutes during the time period required by Section 2.06(b), but argued that it was “impossible to meet the tenets of OMA relative to completing minutes within a thirty (30) day period” due to a “significant increase in meetings” and staffing shortages. The PAC found that the plain language of Section 2.06(b) was clear and that it contained no exception that authorizes a public body to delay approval of minutes. The PAC ordered the Village to develop protocols to ensure that it approves all meeting minutes within 30 days of those meetings or at its second subsequent regular meeting, whichever is later.

This opinion is binding only to the parties involved and may be appealed pursuant to State law.

In 2015, tenured teacher Timothy Burgess (Burgess) was dismissed from his teaching position by the Board of Education of Ottawa Township High School District No. 140 (Board). Burgess appealed the Board’s decision and a tenured teacher dismissal hearing was held pursuant to Article 24 of the School Code. Following a three-day hearing, Ill. State Board of Education hearing officer Danielle Carne (Carne) found that Burgess’s conduct did not violate the prohibitions and mandates he had previously been issued via a Notice to Remedy in 2009. As a result, Carne recommended that the Board reverse its dismissal of Burgess. The Board believed Carne’s findings and conclusions were flawed, so it rejected her recommendation and upheld its dismissal of Burgess.
 
Burgess filed a complaint for administrative review in the circuit court. Upon review, the circuit court found that while the Board was wrong to find that Carne’s findings were erroneous, Burgess’s conduct was not remediable. Accordingly, the circuit court affirmed the Board’s dismissal of Burgess.
 
Burgess then appealed to the Third District Appellate Court (Court). The Court employed a two-part process to review the dismissal. First, it reviewed the Board’s supplemental factual findings, as well as Carne’s factual findings that were incorporated, unmodified, into the Board’s decision, to determine whether those findings were against the manifest weight of the evidence. Second, it applied the clearly erroneous standard of review to determine whether the Board’s findings of fact provided a sufficient basis for its conclusion regarding whether Burgess should be dismissed or retained.
 
Reviewing the evidence, the Court found that the Board’s supplemental factual findings were against the manifest weight of the evidence, in part because the Board “went to great lengths” to discredit witnesses that favored Burgess while disregarding discrepancies that weighed against the credibility of the administration’s witnesses. The Court further found that the Board’s decision to dismiss Burgess was clearly erroneous. In doing so, it noted that the 2009 Notice to Remedy concerned displays of anger by Burgess in front of staff, parents, students, Board members, and the public – thus it related to Burgess’s fitness as a teacher and the school’s interests in maintaining discipline and operating effectively. In contrast, the conduct that allegedly violated the Notice to Remedy (and which formed the basis for the 2015 dismissal) occurred in private contexts at closed-door union meetings. Though the Court did not condone Burgess’s conduct at those meetings, it held that “no logical nexus exists between this conduct and Burgess’s fitness to perform as a teacher.” Accordingly, the Board’s dismissal decision was arbitrary, unreasonable, and clearly erroneous. The Court reversed the Board’s dismissal of Burgess and remanded the case to circuit court for further proceedings consistent with its decision.