Case Law Alert: Open Meetings Act
Reversal of Attorney General PAC Opinions Upheld by Fourth District Appellate Court
On December 15, 2015, the Illinois Appellate Court upheld the Circuit Court’s reversal of at least two binding public access counselor (“PAC”) opinions issued by the Attorney General of Illinois (“AG”) with regard to purported Open Meetings Act (“OMA”) violations in Bd. of Educ. of Springfield Sch. Dist. 186 v. Attorney Gen. of Illinois & Molly Beck.
The underlying action arose when the Board of Education of Springfield School District No. 186 (“School Board”) acted to terminate the Superintendent’s employment. Prior to acting on the Superintendent’s termination in open session, the School Board convened in closed session to review and sign (but not date) the Superintendent’s separation agreement. It was undisputed that the topic of the closed session, the termination of personnel, was appropriate to discuss in this forum. Following its review of the agreement, the School Board then reconvened into open session and voted upon the Superintendent’s termination and approved the separation agreement, which was passed by a 6-1 vote. Following its approval in open session, a date was added to the separation agreement next to the trustees’ signatures.
A reporter, acting on behalf of a local newspaper, challenged the School Board’s actions on two separate grounds. First, it was alleged that signing the separation agreement during closed session constituted impermissible “action” by the School Board. This argument was supported by the premise that the act of signing the agreement was the equivalent of approving the agreement, in violation of OMA which provides that the action of all public bodies must occur during open session. The AG agreed, stating that the act of signing the document “did constitute the taking of a final action in violation of section 2(e) of [OMA]” and issued a binding opinion to that effect.
Upon instruction of the circuit court, the AG addressed a second issue, namely, whether the School Board’s subsequent vote in open session constituted a ratification of its prior action. The AG found that it did not, because it “failed to adequately inform the public of the nature of the matter under consideration or the business being conducted.” Specifically, it was argued that the item, which appeared under the heading “roll call action items” and entitled “Approval of a Resolution Regarding the Agreement Between Superintendent Milton and the Board,” was not sufficient to “provide the public with information from which it might comprehend the purpose and effect of the Board’s action.” The PAC then issued its second binding opinion. The circuit court, in two separate proceedings, disagreed with the AG and found in favor of the School Board and determined that no OMA violations had occurred. The news reporter and AG appealed both determinations.
The appellate court addressed both issues. First, it reviewed the issue of whether a trustee’s signature on a document executed during a closed board session constituted a violation of OMA. The court found that it did not. Citing Howe v. Retirement Board of the Fireman’s Annuity & Benefit Fund, 2013 IL App (1st) 122446, the court noted that “no public body in Illinois subject to the *** Act can take final action by merely circulating some document for signature and not voting on it publicly.” It further noted that it has long been understood that Section 2 [of OMA] prohibits any final action being taken in closed session and it has long been held that a board convening to closed session was inconsequential so long as the ultimate vote was taken in open session (See also, Jewell v. Board of Education, 19 Ill. App. 3d 1091, 1094-95 (“the fact that there were two votes taken, one at the closed and one at the open session, should not be considered a violation of the act. The crucial fact is that the final vote was taken in open session”).
Addressing the second issue, the court examined whether notice was properly posted, and specifically, whether the item, as listed on the agenda was sufficient to be acted upon. The court held that it was. The relevant statute provides the following with regard to final action: “No 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 business being conducted.”
Upon examination of the Board’s website, the court located the agenda, which listed the item as “Approval of a Resolution Regarding the… Agreement… between… Milton and the Board” as well as a link to a copy of the proposed agreement. It found this to be sufficient notice to the public and rejected the AG’s reliance on legislative intent (“where statutory language is clear and unambiguous – as in this instance – we need not resort to extrinsic evidence to aid our analysis.”).
By: Laura M. Julien
If you have any questions concerning the Open Meetings Act, Freedom of Information Act, or any other issues concerning public bodies, please contact Peter K. Wilson, Bernard K. Weiler, Jessica L. Briney, or Laura M. Julien, of Mickey, Wilson, Weiler, Renzi, Lenert, & Julien, P.C., 2111 Plum Street, Suite 201, Aurora, Illinois 60506. Telephone Number:630-801-9699, or by E-mail at: pkw@mickeywilson.com; bkw@mickeywilson.com; saa@mickeywilson.com; jlb@mickeywilson.com; and lmj@mickeywilson.com.