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Tuesday, May 28, 2013

School Board Violated OMA by Not Discussing Item Prior to Voting

UPDATE 11/14/13 - Circuit Court overturned PAC ruling, finding that District did not violate OMA by signing agreement in executive session; remands to PAC to investigate further the other alleged violations (failure to discuss and adequately notify public)

In its 7th binding opinion of 2013, the Public Access Counselor of the Illinois Attorney General's office found a Springfield School District in violation of the Open Meetings Act for the following reasons:  (1) the Board members signed an employee's separation agreement in closed session; (2) the Board voted to approve the separation agreement in open session but failed to inform the public of the reasons for the separation agreement or its terms before voting; (3) the Board did not provide a recording for three of its closed sessions; and (4) the Board did not summarize the discussions concerning the separation agreement in the minutes of the closed meetings.   PAC Op. 13-007.
The Springfield School District Board held 10 closed sessions to discuss the possible separation of its superintendent from November, 2012 to February, 2013.  At a regular meeting on March 5, 2013, the Board voted in open session to approve a separation agreement.  The action item was listed on the agenda, and the vote was in open session.  However, there was no discussion preceding the vote except for one Board member's statement that she supported the superintendent.  Subsequently, a reporter filed a complaint with the PAC office alleging that the Board violated the OMA when 6 of the 7 Board members signed the separation agreement in closed session in February, prior to its approval in March.   
The PAC requested copies of the minutes and verbatim recordings of the closed sessions.  The Board was unable to provide recordings of 3 of the closed sessions because the recordings failed. After listening to the recordings and reviewing the minutes, the PAC determined that although the scope of the discussions about the separation agreement in closed session was proper, the Board's actions in signing the agreement in closed session and failing to record the closed sessions violated the OMA. 
In its opinion, the PAC dismissed the rulings in an Illinois Supreme Court case and Illinois appellate court case that both held that a public body can deliberate and sign a decision in closed session so long as the public body votes to approve that decision in open session.  The PAC emphasized that the OMA expressly requires public bodies to inform the public of the nature of matters under consideration and the business being conducted before taking final action. The PAC further stated that describing the nature of the matter under consideration "only in vague, general terms" will not suffice to meet the OMA requirement that the public be informed about the terms of actions being voted on by a public body.  The PAC specifically objected to the public not being informed of the details of the lump sum payment to the superintendent.
What does this mean for Illinois public bodies?  Based on this opinion, it would appear that the PAC is reading a requirement into the OMA that there must be a detailed discussion of every agenda item that will be voted on at a particular meeting, including a summary of the terms of each agreement and other action being taken at a meeting. 
It's not clear what that means for public bodies that use a "consent agenda" to consolidate votes on multiple "routine" agenda items.  It also isn't clear how much detail will suffice - if a public body is approving a 50 page franchise agreement, must the public body discuss each page, or will an executive summary be enough?  If a public body "misses" disclosing a term that the PAC deems significant, will it be in violation of the OMA?  Unfortunately, this opinion doesn't provide a lot of guidance for public bodies. 
Post Authored by Julie Tappendorf, Ancel Glink


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