PAC Directs School Board to Re-Vote on Severance Agreement Due to Agenda Deficiency
The Public Access Counselor of the Illinois Attorney General recently found a school district board in violation of the OMA for failing to indicate the general subject matter of an action taken after executive session. PAC Op. 23-004.
According to the opinion, a school board went into executive session at one of its meetings to discuss a severance agreement for a school employee. After returning to open session, the board voted to approve a severance agreement as part of its action on personnel matters. Four months after the meeting, an individual filed a request for review with the PAC, claiming the board's vote on the severance agreement violated the OMA because the meeting agenda did not adequately describe the action to be taken at the meeting.
The agenda included the following items relating to the closed session and immediately following open session:
10. Closed session
For the purpose of discussing
- The appointment, employment, compensation, discipline, performance, or dismissal of specific employees of the public body 5 ILCS 120/2(c)(1), amended by P.A. 101- 459.
Immediately following closed session, action may take place as a result of closed session discussion.
11. Reconvene in open session
- The appointment, employment, compensation, discipline, performance, or dismissal of specific employees of the public body 5 ILCS 120/2(c)(1), amended by P.A. 101459
Immediately following closed session, action may take place as a result of closed session discussion.
In its response to the PAC, the school board argued that the request for review was not filed within the 60 day statutory time-period and that the individual who filed the complaint could have discovered the issue within the 60 day period if he had exercised due diligence because the action was publicly discussed the meeting, the agreement was publicly available after final action was taken, and the minutes explained the final action.
The PAC rejected the board's argument that the request for review was untimely, determining that the individual did not discover the issue until the press published articles about the action, so the PAC found the complaint timely.
In considering the substantive claim that the vote violated the OMA, the PAC noted that section 2.02(c) of OMA states, in pertinent part, as follows:
(c) Any agenda required under this Section shall set forth the general subject matter of any resolution or ordinance that will be the subject of final action at the meeting.
It is important to note that the opinion does not state whether the severance agreement that was voted on by the board was approved by ordinance or resolution to trigger this section (not all actions taken by a public body are by ordinance or resolution). In any event, the PAC interpreted section 2.02(c) in an expansive manner, stating that it applies to any final action a public body intends to take at a meeting. Applying this section to the issue raised in the request for review, the PAC found the board violated the OMA because its meeting agenda did not set forth the "general subject matter" of the board's vote on the severance agreement. The PAC then directed the board to re-vote on the severance agreement in a manner consistent with its opinion and to ensure that future agendas complied with the OMA.
Author commentary: Putting aside the PAC's expansive interpretation of section 2.02(c) to apply to any final action of a public body rather than just action on a resolution or ordinance as stated in the statute, it is important to remember that previous court cases have required agenda items to be "sufficiently descriptive" to inform the public about matters that will be the subject of final action at a meeting. For example, an Illinois Appellate Court ruled in 2002 that an agenda item called "NEW BUSINESS" was not sufficiently descriptive for the public to be informed that a board would be voting on a matter at the meeting. Rice v. Board of Trustees of Adams County.
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