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Wednesday, June 17, 2015

Attorney General Files Brief in OMA Case

You may recall in 2013 and then in 2014, the Attorney General issued two opinions finding an Illinois school district in violation of the OMA because the school board members (1) signed a separation agreement in closed session and (2) failed to adequately discuss the substance of the separation agreement at a later open session where the board voted to approve the agreement. In both cases, the school board appealed the decisions of the Attorney General, and the circuit court overturned the AG.  The AG appealed to the appellate court, and although I don't have a decision to report to you today, I wanted to share a copy of the Attorney General's brief in support of its appeal. The Illinois Municipal League is filing an amicus brief in support of the circuit court's decision, which I will share in a future post.

The first opinion of the AG related to the board members' signing of the agreement in closed session. The district argued that it did not violate the OMA because the board approved the agreement at a later meeting, in open session. The AG, however, argued that the mere signing of the agreement constituted "final action" which violated the provision of the OMA that prohibits any final action in closed session. 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. You can read about the AG's first opinion here.  

In its second opinion about this case, the AG interpreted Section 2(e) of the OMA, which requires a public recitation of the nature of the matter being discussed prior to a vote on an agenda item. The AG held that this required the school board to "provide a verbal explanation of the significance of its action to members of the public who are present at the meeting before the public body can proceed to consider action taken." Although the school board had, in fact, engaged in a discussion prior to voting on the agreement, the PAC found the board in violation of this section of the OMA for failing to explain to the public the significance of approving the separation agreement. You can read about the AG's second opinion here.  The court overturned the AG, finding no support in Illinois law for "such an expansion of the requirements of Section 2 (e) of the Open Meetings Act." The court noted that not only did board members engage in discussion before voting, they had also posted a copy of the agreement five days before the meeting. We reported on the court decision here.

In its appellate brief, the AG relies on a couple of Illinois decisions that involved a public body taking final action to approve an agenda item in closed session. In the AG's view, the signing of the agreement was itself "final action." The AG rejects the board's argument that the final action was actually taken in open session, at a subsequent meeting, because the board failed to adequately inform the public of the action it was taking before it voted. The AG acknowledged that the board president announced the agenda item before it was voted on, and that there was some discussion before the vote. The AG also acknowledged that the agreement itself was posted on the board's website in advance of the meeting. Nevertheless, that was not enough to inform the public who attended the meeting of the substance of the agreement that was voted on. The AG does not provide any guidance to a public body as to what would be "enough" to satisfy the AG that the public was informed about an item before it was voted on.

The circuit court rulings were a good result for public bodies and the the right decisions. The PAC's expansive reading of the OMA to require an explanation of the significance of an agenda item prior to voting is simply not consistent with the OMA nor common practices of public bodies. That interpretation also creates uncertainty for public bodies in their use of consent agendas. We certainly hope the appellate court agrees, and will keep you posted on this case as it moves forward.

Post Authored by Julie Tappendorf


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