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Friday, April 11, 2014

The Wait is Over - PAC Issues 1st Opinion of 2014

As I reported on the blog previously, the PAC has been pretty quiet this year in issuing binding opinions - so quiet, in fact, that it had not issued one binding opinion until April 10th in PAC 14-001.  It will come as no surprise to loyal readers of this blog that the PAC ruled against the public body.

This particular opinion has some history at the PAC.  In 2013, a reporter filed a complaint with the PAC alleging that the Springfield Board of Education had violated the Open Meetings Act when it approved a separation agreement with the former superintendent.  The PAC issued binding opinion PAC 13-007 finding the School District in violation of the OMA because it signed the agreement in executive session.  

The Board appealed to the circuit court, and the court overturned the PAC, finding that the act of signing the agreement in closed session was not a violation of the OMA since the Board had formally acted on the agreement in open session.  The court then remanded back to the PAC the issue of whether the Board's actual vote on the separation agreement was preceded by an adequate "public recital."  You can read about the 2013 PAC ruling and court decision on the blog here.

The PAC reviewed a video recording of the following Board President's recitation of the item before it was voted on:
Item 9.1, approval of a resolution regarding the separation agreement. The Board President recommends that the Board of Education in Springfield School District No. 186 vote to approve the separation agreement and release between Dr. Walter Milton, Jr. and the Board of Education. Do I have a motion?
Although there was also some discussion about the separation agreement by individual Board members before the vote, and the agreement itself was posted on the District's website as part of the meeting agenda, the PAC still determined the Board violated the OMA because it did not publicly discuss or summarize the terms of the agreement, including the amount of the lump sum payment to the superintendent or the reasons leading to the decision to terminate the supervisor. 

The PAC based its decision on Section 2(e) of the OMA requiring a public body to (1) publicly recite the nature of its action; and (2) provide such other information as will inform the public of the business being conducted before taking final action.  In the PAC's opinion, the Board President's statement about the nature of the separation agreement, the individual Board members' discussions about the agreement, and releasing a copy of the agreement to the public in advance, were not an adequate "public recital" before the vote.  

As we noted previously, this interpretation of the OMA by the PAC is problematic for public bodies for a couple of reasons.  

First, the PAC has provided little to no guidance as to what constitutes a "public recital" under the OMA - must a public body publicly summarize each section of an agreement or ordinance before voting on it?  Read an entire document into the record before acting on it?  If providing a full copy of the document in advance is not enough to notify the public of the nature of an item that will be voted on, what will satisfy the PAC?  

Second, does this rule out the ability to use a consent or omnibus agenda to approve multiple agenda items?  

Third, what precedent is the PAC relying on for its interpretation of Section 2(e) of the OMA?  The only case cited in this opinion is directly contrary to the PAC's opinion, and involves a federal district court in Illinois holding that providing a copy of a resolution as part of a meeting agenda was a sufficient "public recital."  The PAC cites no case in support of its opinion that a detailed summary of an item is required before it can be voted on.

It is certainly possible that the School District may appeal this second PAC opinion to the court, particularly where the PAC cites no case law in support of its broad and unprecedented interpretation of "public recital." 

Post Authored by Julie Tappendorf, Ancel Glink 


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