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An Illinois Court of Appeals followed the clear language of the Open Meetings Act (the Act) and reversed a recent Illinois Attorney General (AG) Public Access Counselor’s (PAC) opinion that would have expanded the amount of information required to be disclosed at or prior to a meeting before a governmental entity took final action. This decision should be viewed as a victory for efficiently conducting public business, and serve as clear guidance for public agencies considering what must be provided and accomplished before taking a final action. This opinion also clarifies that no “final action” can be taken in closed session, but does not bar the straw polling or execution of documentation in closed session, so long as there is an open and public vote recorded for that same act.

The Court’s Decision

In Bd. of Educ. of Springfield Sch. Dist. No. 186 v. Attorney Gen’l of Ill., Case No. 4-14-0941 (4th Dist. Dec. 15, 2015), a school district superintendent reached an agreed separation of employment that needed approval by the school board to become effective. After negotiating the terms of a separation agreement and release, the school board met in closed session and six of the seven school board members signed the release during the closed session. Before its next open meeting, the school board posted the entire separation agreement on its website and listed the agreement as an action item on the agenda for the upcoming meeting. At the open meeting, the board president read the title of the agreement and recommended its approval. Six of the seven board members voted to approve the agreement.

Subsequently, a reporter for a local newspaper filed a challenge with the PAC, arguing that because the board signed the agreement, including terms of compensation, without taking a public vote beforehand, the board violated the requirements of the Act. The PAC agreed with the reporter and found that the school board did take a “final action,” contrary to the requirements of the Act and issued a binding opinion. The PAC explained that signing the agreement in executive session “did constitute the taking of a final action in violation of [the Act]…because [the school board] failed to adequately inform the public of the nature of the matter under consideration or the business being conducted.”

The school district appealed the PAC’s opinion to the Illinois trial court. The trial court ruled against the PAC, concluding that the “PAC opinion significantly expands the requirements of the Act, changing the requirement of public notice from advising of the nature of the final action to be taken to a requirement that the public body explain the significant of the final action to be taken. There is no authority which would support such an expansion of the requirements.” The AG then appealed the trial court’s decision to the court of appeals, where the court focused on three provisions of the Act:

Section 1. Policy. It is the public policy of this State that public bodies exist to aid in the conduct of the people’s business and that the people have a right to be informed as to the conduct of their business. 5 ILCS 120/1.

Section 2(c). Exceptions. A public body may hold closed meetings to consider the following subjects:
(1) The appointment, employment, compensation, discipline or dismissal of specific employees of the public body. 5 ILCS 120/2(c)(1).

Section 2(e). 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 the business being conducted. 5 ILCS 120/2(e).

Considering whether the school board’s signing the separation agreement in closed session constituted a “final action,” the court found that a final action “can only occur at a properly conducted public forum where the public entity expresses its opinion—usually in the form of a vote or signature—on a public issue.” Thus, the board members signing the separation agreement during closed session could not amount to a “final action.”

The case, therefore, hinged on whether the school board’s public vote approving the separation agreement included adequate information to constitute a valid “final action.” Prior to the public meeting, the school board posted a meeting agenda on its website including the separation agreement as an action item; attached a copy of the entire separation agreement to the agenda; and at the public meeting, the school board president introduced the agreement, and named the employee who was the subject of the agreement, before recommending that the board vote to approve the agreement.

The AG argued that the Act requires “that the public body provide a detailed explanation about the significance or impact of the proposed final action.” The court rejected the AG’s argument, finding that the school board’s notice met the “final action” requirements of Section 2(e) of the Act because it advised the public of the “general nature of the final action to be taken.” The court upheld the school district’s actions and reversed the PAC opinion.

What Does This Mean for Local Government Agencies?

This case marks a judicial push back against the recent trend of expansive PAC interpretations of the Act. The PAC’s attempt to expand the reach of the Act to institute additional requirements not found in the plain language of the Act was expressly rejected in this instance. What remains unclear is what impact this will have on other recent PAC opinions, and how this will influence future PAC opinions.

The PAC has issued two opinions in the past several years addressing whether a sufficient explanation had been given to justify final actions. On September 24, 2013, the PAC found that Geneva School District No. 304 failed to properly take a final action when it moved to dismiss an employee but did not publicly identify the employee by name (See PAC Op. No. 13-016). In another opinion, issued on April 23, 2013, the PAC found that Western Illinois University failed to properly take a final action when it voted in executive session to dismiss a public employee (See PAC Op. No. 13-003). The situation presented by Springfield Sch. Dist. No. 186 is different than the other PAC opinions, and it is our opinion that neither of the other PAC opinions are impacted by this decision.

The full impact of the Springfield Sch. Dist. No. 186 decision will likely play out in the future as the AG considers this new boundary for how far the Act can be interpreted by its PAC. However, for the time being we recommend that public employers proceed with continued awareness of the PAC’s expansive interpretation of the Act, and act cautiously to ensure that final actions will not be overturned.

Because Open Meetings Act questions can arise in a multitude of circumstances, and two situations are rarely the same, please consult your attorney to help your agency follow the correct Open Meetings Act procedures.