A constant question for boards is whether discussions are best suited for an open or closed session. The Open Meetings Act requires that all meetings of public bodies be open to the public. 5 ILCS 120/2.  However, there are multiple exceptions to this rule. Specifically, boards are permitted to move a meeting from open to closed session to discuss “the appointment, employment, compensation, discipline, performance, or dismissal of specific employees…”5 ILCS 120/2(c)(1).  A common mistake made by public bodies is interpreting this exception to mean that all conversations about any personnel matters may be held in closed session. Unfortunately, this oversimplification of the exception can lead to problems for boards.

Recently, the Public Access Council (PAC) was asked to address whether a public body appropriately brought a discussion into a closed session to consider the personnel evaluation process for school principals. Public Access Opinion 20-004.  In their investigation, the PAC examined the closed session minutes and the corresponding record.  In this review, the PAC found that the closed session consisted of 32 minutes of conversation about revising the evaluation process and only three minutes of discussion about the specific employee’s past evaluations. At the conclusion of the discussion, the board did not make any changes to the evaluation procedures. 

The PAC determined that the public body had erred in holding this discussion in closed session. Specifically, the PAC found that because the primary conversation in closed session surrounded the evaluative practices of a general position of employment, the principal position, the topic should have been addressed in open session. Additionally, the PAC found that whether or not changes arise from the discussion is not relevant to whether the discussion should occur in open or closed session. Rather, the PAC opined that discussions surrounding the retainment of a policy in open sessions are just as important as the discussions addressing changing the policy as they may provide guidance to those who may down the road seek to “clarify, modify, or repeal that policy”.  For these reasons, the PAC found a violation of the Open Meetings Act.

This PAC opinion reminds boards that the personnel exception is only for discussions relating to specific personnel. This decision stands as a warning.  As was done here, if the discussion should have been held in open session, the PAC can require that the minutes/recordings be released to the public. Boards are encouraged to seek advice from legal counsel if they are ever uncertain whether an agenda item addressing personnel matters should be held in an open or closed session. Please reach out to your Tressler attorney with any questions.

For more information about this article, contact Tressler attorney Elizabeth Wagman at ewagman@tresslerllp.com.