NEW BOARD OF EDUCATION TO ORGANIZE BY MAY 2ND AND NEW BOARD MEMBER TRAINING REQUIREMENTS LOOM

April 26, 2017

Organization Meeting

With the results of the April 4th consolidated general election mostly certified by now, school boards in Illinois are reorganizing to seat new board members. No later than May 2, 2017, all school boards must hold their organization meeting where the oath of office will be taken, the new board will be seated, new board officers elected, board committees appointed and a schedule of regular board meetings will be approved.

Board Member Training

New board members must complete two kinds of mandatory training sessions and we recommend that a third type of training be taken as well.

Pursuant to the Open Meetings Act (“OMA”), new board members must complete OMA training within 90 days of taking the oath of office. The board member has the option of completing either:

  1. The online training tutorial provided by the Attorney General’s Office of the Public AccessCounselor (PAC); or

     

  2. OMA training provided by the Illinois Association of School Boards (IASB). Seehttp://iasb.com/training/nbmw.cfm for registration information.

    Once the OMA training has been completed, the board member must file a certificate of completeness with the school district’s administrative office.

    New board members must also complete professional development leadership training (PDLT) which is mandated by the School Code. Compliance with this provision is required within one year of the board member being seated to the board. School districts must indicate on their website which of its board members have completed the PDLT training.

    A third type of training is required under Performance Evaluation Review Act (PERA) for any board member who will be called upon to vote on a teacher dismissal based upon an optional alternative evaluation dismissal process. So while that training is not legally mandated for all school board members, it is necessary as a practical matter. The PERA training must be completed before a board member can vote on a PERA dismissal – which can arise during the first year of office. Accordingly, we recommend that the training be accomplished sooner than later.

    The trainings detailed above are required only once per board member. A board member who has been reelected to office and who has received these training previously has the option of attending the trainings, but is not legally required to do so.

    Following past elections, Scariano, Himes and Petrarca has provided direct training to new school board members in the areas of PDLT and PERA, while the IASB provided the same training. Instead of duplicating the efforts of our colleagues at IASB, this year we have partnered with IASB to provide the PDLT and PERA board member training. On June 16, 2017, Lynn Himes and James Petrungaro will be presenters for the PERA and PDLT training sessions at IASB’s New Board Member Workshop at the Tinley Park Convention Center. See http://iasb.com/training/nbmw.cfm for registration information. IASB will also be providing the mandatory OMA training on that day, allowing for board members to complete all three mandatory trainings in a single day.

 

ILLINOIS SUPREME COURT REJECTS ATTORNEY GENERAL'S ATTEMPT TO EXPAND THE OPEN MEETINGS ACT

By James Petrungaro

January 23, 2017

SH&P Filed Amicus Brief Arguing Against Overreaching Interpretation Requiring Boards to Explain Significance of Transactions

            In a decision that provides relief to not only school boards but to all Illinois public bodies subject to the Open Meetings Act (“OMA”), the Illinois Supreme Court on Friday rejected the efforts of the Illinois Attorney General to significantly expand the public recital requirement of the government transparency law. Primarily at issue in the case was the Attorney General’s interpretation of Section 2(e) of the OMA, which provides:

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.

The meaning of that “public recital” requirement was contested between the Attorney General and the Board of Education of Springfield School District No. 186 (“Board”) concerning the school board’s action in March 2013 to authorize a separation agreement with its superintendent.

            The circumstances of the authorization of the separation agreement are notable, if only to explain the Attorney General’s involvement in the matter. In late 2012, the Board and superintendent began talks about ending their employment relationship. By February 2013, the two sides had tentatively agreed on the separation terms. At the Board’s February 4th meeting, six of seven Board members signed the separation agreement, which had already been signed by the outgoing superintendent. The Board considered its obligation to authorize that agreement in a public session, and decided to delay that action until its March 5th meeting. Meanwhile, after obtaining a copy of the signed separation agreement, on February 21st, a local newspaper reporter named Molly Beck filed a challenge with the Attorney General claiming that the Board had violated the OMA by allegedly taking “final action” in closed session.

            While the Beck complaint was pending with the Attorney General, the Board moved forward with its plans to authorize the separation agreement at its March 5th meeting. On March 1st, it posted the meeting agenda on its website, including an electronic link to the separation agreement, thus allowing the public to view the entire agreement. At the meeting, the Board president then announced:

I have item 9.1, approval of a resolution regarding the separation agreement. The Board President recommends that the Board of Education of Springfield School District No. 186 vote to approve the separation agreement and release between Dr. Walter Milton, Jr., and the Board of Education.

The lone Board member who had not signed the agreement at the prior meeting dissented and moved to table the matter, commenting in support of the superintendent. Another Board member thanked the superintendent for his service, but the terms of the separation agreement were not discussed. The Board voted and the measure passed 6-1.

Following the March 5th meeting, the Attorney General’s investigation of the matter expanded from reviewing whether the Board had taken an illegal final action in closed session to reviewing whether the Board had made a sufficient “public recital” when it authorized the agreement at its March 5th meeting. The Attorney General determined that the Board’s March 5th public action was insufficient because it did not include a recital of the “nature of the matter being considered” and “other information that will inform the public of the business being conducted.” The Attorney General interpreted the other information requirement to mean that public bodies must recite the “key terms” of the transaction such that a member of the public attending the meeting could understand the significance of the action being taken. The Attorney General also determined that the Board’s signing of the separation agreement in closed session was a violation of the OMA.

The Board of Education appealed the decision to the Circuit Court where, the decision was reversed. The Attorney General then appealed the matter all the way to the Illinois Supreme Court, which ruled in favor of the Board of Education on all issues, with no dissenting justices. Like the courts below, the Supreme Court held that the Attorney General had read additional requirements into the OMA that the legislature had not intended. The Supreme Court announced that the OMA requires no such recitation of “key terms,” nor does it require that sufficient information be recited that would allow a public understanding of the “significance” of the action being taken. The Supreme Court also held that the Springfield Board of Education’s public recital, although not particularly informative of the terms of the separation agreement, was sufficient to meet the obligations of the OMA, which it determined requires only a recitation of the “essence” or “character” of the action in addition to the nature of the action. Notably, the court based its decision on the Board’s oral recital of the action at the meeting and ignored the fact that the separation agreement had been made publicly available online days before. The court noted that a public body must abide by the public recital requirement at the board meeting and that making the information available in advance of the meeting was not sufficient.

Additionally, the Supreme Court was not critical of the school board’s actions in closed session. The court confirmed that public bodies are permitted to discuss and even take preliminary votes on personnel matters in closed session, provided that a final public vote is taken thereafter.

The Supreme Court’s rejection of the Attorney General’s preferred approach should not be underestimated. Had the Attorney General’s interpretation been endorsed, an unworkable standard would have bogged down public meetings, as school boards would have been forced to decipher what “key” information was to be shared. Though in the context of a single employment action that might not be overly burdensome, doing so for more significant actions (e.g., authorizing lengthy construction contracts; approving entire collective bargaining agreements; approving accounts payable; etc.) would have taxed school boards and even disenfranchised the public from attending what would become unduly long and overly technical sessions. That is exactly what James Petrungaro and Kevin Gordon argued in the amicus brief that Scariano, Himes and Petrarca filed with the Appellate Court and Supreme Court on behalf of the IASB/IASA/IASBO Alliance.

Despite the important victory for public bodies, the particular information necessary to satisfy the “public recital” requirement of the OMA remains a fact-specific exercise. Your attorneys at the Firm are prepared to assist you whenever called upon.

  Tags:    Board Governance

            OMA  

New Law Requires Specific Board Policy Regulating Travel Expenses

By James Petrungaro and Anthony Scariano, III

July 28, 2016

             Recently, Governor Rauner signed into law a new piece of legislation that regulates travel expenses for school districts and other units of local government. The Local Government Travel Expense Control Act requires that school boards enact a policy no later than July 1, 2017, regulating the reimbursement of all travel, meal, and lodging expenses of board members and employees, including at least the following:

The types of business for which travel, meal and lodging expenses are allowed;

  • The maximum expense amount for travel, meal and lodging expenses;

  • A standardized form for the submission of travel, meal and lodging expenses that requires documentation of the expense (e.g., a receipt, invoices, etc.).The minimum documentation to be provided to the Board before an expense or reimbursement may be authorized is as follows:

    • A description of the actual amount of meal, travel and lodging expenses if already incurred, or an estimate if they have not yet been incurred;

    • The name and title of the individual incurring the expenses;

    • The date of the travel and the nature of the business being conducted.

             The Act also allows, but does not mandate, that the Board policy may permit expense/reimbursement approval beyond the maximum amount because of extraordinary circumstances or emergency. If a policy as outlined above is not approved by the Board by July 1, 2017, no travel, meal or lodging expenses of any kind – whether within the maximum limit or not – may be paid or authorized by the Board until such a policy is authorized.

             Furthermore, entertainment expenses that are not “ancillary” to the program or event may not be paid for by the Board under any circumstances.

             Additionally, the Act requires that by March 2, 2017, any (1) employee expenses or reimbursements that exceed the Board’s maximum amount as set forth by policy, or (2) Board member expenses/reimbursements (whether exceeding the maximum amount or not), must be authorized by a roll call vote of the board during public session. Based on the spirit of the law, we conservatively interpret that to mean that the action should be a separate, stand-alone action with each member of the board casting a vote.

            The conflicting timelines in the Act present an inconsistency in the legislation. On the one hand, the Act states that a new policy must be in place no later than July 1, 2017, otherwise no expenses or reimbursements may be authorized by the Board. On the other hand, the Act separately provides the earlier March 2, 2017 deadline for the policy as it pertains to establishing a maximum expense amount, which if exceeded by an employee, requires a roll call vote of the board. Accordingly, we recommend that the Board’s new expense policy be adopted no later than the end of February 2017.

             It is expected that PRESS and other similar policy subscription services will promulgate a model policy for boards to adopt. If your District does not use a policy subscription service or would otherwise like our assistance in preparing or reviewing a compliant policy, we stand ready to assist.

 Tags:    Board Governance

               Policies

               Operations

               Finance

FEDERAL COURT STOPS SCHOOL BOARD FROM ENFORCING UNCONSTITUTIONAL PUBLIC PARTICIPATION POLICY

April 28, 2016

By Adam Dauksas

 

Earlier this month, a federal district court judge enjoined a suburban school board from enforcing a policy that prohibited criticism of school officials during the public comment portion of its meetings.  The case, Mnyofu v. Board of Education of Rich Township High School District 227, is the latest reminder to boards of education and other public bodies of the harsh judicial treatment to which content-based speech restrictions will be subject to if enacted or enforced. 

In Mnyofu, a local resident of the district alleged that his First Amendment rights had been violated by the board and its president when they, in accordance with a board policy, prevented him from criticizing school officials at a meeting.  The policy was, in fact, verbally stated prior to the public comment portion of the meeting and printed on the agenda as well.  It stated, in pertinent part, “[p]lease refrain from mentioning the name of students and employees.” 

Along with his motion for a preliminary injunction, Mnyofu submitted a video showing him speaking and beginning to criticize certain individuals by name.  At that time, the board president asked for the microphone to be turned off, for the security guard to stop Mnyofu from speaking and for the police to be called.  Mnyofu alleged that “[t]here is no compelling reason or legitimate government interest of any kind in prohibiting criticism of public officials at public meetings while allowing favorable comments about public officials.”

In rejecting the school board’s arguments to dismiss Mnyofu’s claims, the court entered the preliminary injunction he sought and found that Mnyofu was likely to succeed on the merits of those claims because “the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”  “Additionally, there can be no irreparable harm to a municipality when it is prevented from enforcing an unconstitutional statute because it is always in the public interest to protect First Amendment liberties.” 

While Mnyofu is instructive concerning a board of education’s attempt to restrict a citizen’s speech based on that speech’s content, the case presents just one of the many issues the public comment portion of meetings may bring about.  For instance, some boards of education require those wishing to make a public comment to state their concerns in writing before being given the chance to speak.  Section 10-6 of the School Code, however, provides that when a board president or superintendent “receives a written correspondence from a resident within the school district’s territory, requesting the consideration of a matter before the board, the author of the correspondence shall receive a formal written statement from an appointed official of the board stating the board’s position on their request, no later than 60 days from the receipt of the correspondence . . . .”  Thus, in such a scenario, a board may actually be required to respond in writing to what it assumed to be a routine public statement. 

If your board of education has a public comment policy that needs to be revised in light of Mnyofu or simply needs a fresh review for identifying other possible legal issues, Scariano, Himes and Petrarca, Chtd. stands ready to assist.  

 

Tags:    Board Governance/OMA

APPELLATE COURT OVERRULES ATTORNEY GENERAL ON SIGNIFICANT OPEN MEETINGS INTERPRETATION

 December 18, 2015       

 By James Petrungaro      

Last year, we reported to you decisions from the Attorney General concerning the process employed by the Springfield School District 186 Board of Education when it authorized a settlement agreement with its departing superintendent. The facts of the dispute were largely uncontested. 

  • In late 2012, the School District’s superintendent approached the board about terminating their employment contract.

  •  At a February 4, 2013 board meeting, six of seven board members signed a separation agreement during closed session. The agreement called for the payment of more than $177,000 to the departing superintendent.

  •  Instead of taking final action in public after the closed-session on February 4, 2013, the Board of Education took a public roll-call vote at its next regular meeting on March 5, 2013.

  • The separation agreement was made publicly available days before the March 5, 2013 meeting on the District’s website.

  • At the March 5, 2013 meeting, the board identified the superintendent by name and position in its motion to authorize the separation agreement, but did not identify the monetary or other specific terms of the agreement.

 After the March 5, 2013 meeting, a member of the media filed a complaint with the Public Access Counselor’s Office of the Attorney General complaining that the board violated the Open Meetings Act (OMA) by: (1) voting on the separation agreement in closed session on February 4; and (2) not adequately informing the public of the nature of the action on March 5.            

In two separate binding opinions, the Attorney General ruled that the board’s actions violated Section 2(e) of the OMA, which provides: 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.  The Attorney General surprisingly reasoned that the board’s signing of the separation agreement in closed session was a “final action” that was prohibited by the OMA. She further contended that even if the school board’s action on March 5 was a lawful “ratification” of its prior action on February 4, that vote did not sufficiently inform the public of the nature of the action being taken. Particularly, the Attorney General took issue with the board’s failure to orally describe the payment amount and other pertinent terms at the time the board voted in public session on March 5.             

The Board of Education appealed the decision to the Circuit Court, which reversed the Attorney General’s decisions. The Attorney General then appealed that decision to the Appellate Court. On appeal, Scariano, Himes and Petrarca represented the Illinois Association of School Boards (IASB), Illinois Association of School Administrators (IASA) and the Illinois Association of School Business Officials (IASBO) by filing an amicus brief with the Appellate Court. Chiefly, the Associations were concerned that the Attorney General’s stance could wreak havoc on the orderly conduct of school board meetings.            

For example, if a board were prohibited from signing a settlement agreement in closed session prior to taking public action on that same agreement, the Attorney General could similarly prohibit boards from testing the water in closed session through informal and non-final straw polls that are part of the fabric of board governance. Additionally, the Associations cautioned the Appellate Court that if Boards were required to publicly cite the “pertinent terms” of all board actions, board meetings would be unnecessarily bogged down, thus deterring and disenfranchising public participation.             

On December 15th, the Appellate Court soundly rejected the Attorney General’s decisions and held that signing the settlement agreement in closed session was not a final action since the Board of Education in fact later took a public vote on the settlement agreement. The Appellate Court also held that the announcement of the separation agreement with the named superintendent, coupled with the Board’s posting of the actual settlement agreement online prior to the meeting, was sufficient public notice and description of the action being taken that night.             

This case is just one example of the aggressive position the Attorney General has taken concerning public body compliance with the OMA, yet it serves as a reminder that the Attorney General’s opinion is not necessarily the final word on compliance issues. If you have any questions concerning your board’s compliance with the OMA, do not hesitate to contact us.

OMA - Final Action

ATTORNEY GENERAL ISSUES OPEN MEETINGS ACT OPINION THAT REQUIRES SCHOOL BOARDS TO CHANGE HOW THEY AUTHORIZE CONTRACTS AND SETTLEMENT/SEPARATION AGREEMENTS

October 8, 2014

By Parker Himes

In recent months, we’ve reported on legislative changes to the Open Meetings Act (“OMA”) and Attorney General (“AG”) opinions that impact how school boards conduct business at their meetings.  We first reported in November 2012 that the OMA now requires agenda items to be sufficiently specific to apprise the public of the nature of the actions to be taken. For example, simply listing “personnel matter” would not be acceptable.  In October 2013, we reported that the AG would require, as part of a motion to authorize an employment action, that the particular employee be identified by name. No longer could a school board, for example, authorize the discipline or dismissal of “Employee A”.

On April 10, 2014, the AG issued another opinion addressing the requirements of the OMA and which requires a significant departure in practice concerning how most school boards conduct business. The opinion concerns a public body’s obligations pursuant to the “final action” provision of the OMA, which reads, “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.”  According to the AG, in order to satisfy this requirement, school boards and other public bodies must provide a verbal explanation of the “pertinent terms” of its action at the meeting before the public body can proceed to consider taking action.

At issue in the dispute was a board of education vote approving a separation agreement and release with its superintendent. At the board meeting, the board president identified the nature of the final action being taken: a separation agreement between the board and the superintendent. Further, the district had posted the separation agreement as a viewable attachment to the board of education’s meeting agenda found on the district’s website.

Even though the board president at the board meeting identified the nature of the final action being taken and the identity of the employee involved, and had posted the separation agreement as a viewable attachment to its agenda posted on its website, the AG found that these actions were not enough to satisfy the OMA. The AG noted that the school board did not “publicly discuss or summarize the terms of the agreement, which included a $177,796.97 lump sum payment to [the superintendent], or the reasons that led to the parties’ agreement to terminate [the superintendent’s] employment.”

In the dispute, the school board argued that it would be absurd to interpret the OMA to require public bodies to read in full each agreement on which final action is being considered.   The AG agreed, only to direct that the OMA requires the “pertinent terms” of the agreement be verbally recited or summarized.  Importantly, however, the AG has not issued guidelines detailing what it considers to be “pertinent terms” of a matter on which the board of education is considering final action. Further, the AG did not limit this new requirement to strictly employment matters, thus making them seemingly applicable to any final action being taken by a public body.

The AG’s opinion is “binding” upon only the school district that was subject to the OMA complaint. Nevertheless, the opinion is instructive as to how the AG would respond to similar complaints against other public bodies and thus should be given careful consideration by all. Scariano, Himes and Petrarca is monitoring the decision and is prepared to assist you with preparing for your next board meeting.

Attorney General Delivers Unfavorable Decision for Public Bodies Concerning Public Comment Rules

ATTORNEY GENERAL ISSUES OPEN MEETINGS ACT OPINION PERMITTING REMOVAL OF AGENDA ITEMS WITHIN 48 HOURS OF MEETING

September 22, 2014

By James A. Petrungaro

The Illinois Attorney General (“AG”) has determined that under the Open Meetings Act (“OMA”), public bodies may not condition public participation during board meeting on the speaker publicly identifying her home address.

Many public bodies in Illinois require members of the public to provide basic information as part of participating in the public comment portion of board meetings. Some require the individual to fill out a sign-in sheet or notecard or to otherwise “register” prior to speaking publicly at the meeting. Other public bodies, like the Village of Lemont – which was subject to the OMA challenge, require the individual to identify her name and address at the beginning of her comments. In a recent “binding decision,” the Attorney General determined that requiring a member of the public to publicly identify her address as part of public participation is a violation of the OMA.

Specifically at issue in the dispute was whether the Village’s unofficial “practice” of requiring the member of the public to identify her address was a violation of the OMA. The AG declared the practice to be a violation for two reasons.

First, while the AG acknowledged that public bodies may promulgate reasonable “time, place and manner” restrictions that are necessary to further a significant governmental interest, under the OMA those restrictions must be pursuant to official policy or ordinance of the public body. Because the address requirement was part of only an unofficial, albeit longstanding, practice, and was absent from the Village’s pertinent ordinance, the practice was unlawful.

Secondly, the AG determined that even if the requirement was part of official Village policy, the rule would nonetheless be overreaching. Particularly, the AG noted that the reasonable rules that a public body may have must be related to ensuring that order and decorum are maintained at the meeting. In so determining, the AG rejected the arguments of the Village that the address requirement was necessary and appropriate to ensure accurate minute-taking, to determine whether the individual was a resident of the Village, and to allow an opportunity for the board to respond to the individual separate from the meeting. Notably, however, the AG did recognize that a public body may permit a member of the public to disclose her address.

It is unclear whether the AG’s decision would be different if the address requirement was restricted to written registration and lacked public disclosure. That practice is less invasive and thus more narrowly tailored to achieve the board’s interests of identifying the speaker. In any event, it appears that the AG is poised to strike down any public comment rules that are not specifically authorized by official board policy. If this recent ruling affects your District’s policy or practice concerning the public comment portion of board meetings, do not hesitate to contact us for assistance.

 

 

ATTORNEY GENERAL ISSUES OPEN MEETINGS ACT OPINION PERMITTING REMOVAL OF AGENDA ITEMS WITHIN 48 HOURS OF MEETING

July 3, 2014

By Parker Himes

Earlier this month, the Illinois Attorney General (“AG”) issued an opinion on the amendment of the meeting agenda of a public body within 48 hours of the meeting by removing two final action items.  The AG concluded that nothing in the Open Meetings Act (“OMA”) prevents a public body from removing action items from an agenda within 48 hours of a meeting. In fact, the AG noted that a public body is not required to amend the agenda at all within the 48 before a meeting if the public body is postponing or canceling action items.

In the matter forming the basis of the opinion, a board of education amended its meeting agenda within 48 hours of a meeting by removing action items and instead listing them as closed session topics. A Request for Review was submitted after this change, alleging that section 2.02 of the OMA, which requires a public body to post a meeting agenda, continuously, 48 hours before a meeting, prevents a public body from amending an agenda within 48 hours of a meeting. In response, the board explained that, because of a change in circumstances, consideration of two items for final action would need to be delayed.  Further, the board noted that “[i]n an effort to be transparent with the public, we amended the agenda as quickly as we could and posted it on our website, so the public could see that we were not going to take final action on those two matters at this time.”  (Emphasis removed).

In its analysis, the AG concluded that section 2.02 of OMA does not require a public body “to address a matter because it is listed on the agenda.”  As was the case in this matter, the AG noted that a public body may decide that additional information or discussion is necessary, and may consequently postpone or cancel consideration of final action on an item.

The AG also held that the public body “could have decided not to amend the agenda and simply deferred consideration of the two items to a later time.” Since the OMA does not require notice in the agenda of topics to be considered in closed session, a “public body may, without additional notice under Section 2.02, hold a closed meeting in accordance with this Act.”  Remember, however, that the specific subject matter exception(s) must be recited in the motion to enter closed session.

While a public body may remove action items from a meeting agenda 48 hours before a meeting, we caution that a public body would run afoul of OMA by adding action items to an agenda within 48 hours of the meeting. Removal of an action item is not injurious to transparency, but the addition of an action item within 48 hours of a meeting would run counter to the spirit of section 2.02 of OMA, which serves to give the public enough notice (48 hours) to determine whether to attend the meeting.

If you have any questions related to the OMA, please do not hesitate to contact an attorney at the Firm so we may ensure your compliance with the Act.

SEATING THE NEW SCHOOL BOARD AND OTHER POST-ELECTION OBLIGATIONS

April 26, 2013

With election season behind us, school boards are contemplating what must be done to get on with business.  Topping the list of post-election governance matters is the reorganization meeting and completing mandatory training for new board members. Scariano, Himes and Petrarca, Chtd. is prepared to help boards accomplish these tasks.

Before holding a reorganization meeting, school boards must ensure that those members elected as write-in candidates conform to certain requirements.   Upon election to the school board, write-in candidates must file with the board secretary a Statement of Candidacy and a receipt for the Statement of Economic Interest.  The board secretary must notify the election authority when these documents have been properly filed.

Once all members have met the requirements for seating, a reorganization meeting must be held within 28 days of the election, which this year is May 7, 2013.  No requirement exists as to when that meeting must take place within the 28- day window.  At this meeting, the board will select a president pro tem and a secretary pro tem. The president pro tem will then call the meeting to order, at which point boards will elect a president, vice president, and secretary.  A treasurer will also be elected, or will be appointed if not a member of the school board.  Dates and locations for regular meetings will be determined and other business to be conducted will be listed.

School board members are also required to undergo two types of training during the first year after an election.  Training regarding the Open Meetings Act (OMA) must be completed within the first 90 days after taking the oath of office.  The training requirements include OMA general applicability, procedures, and legal requirements.  Once OMA training is complete, board members must file a copy of their certificate of completion with the school board.

A minimum of four hours of professional development and leadership training also must be completed.  Board members must complete this training within the first year of their first term.  These four hours consist of training in education and labor law, financial oversight and accountability, and fiduciary responsibilities. School districts must post on their website the names of all board members who have successfully completed this training.

Further, under the Performance Evaluation Reform Act (PERA), board members who will undertake evaluations are required to complete a pre-qualification program approved by the Illinois State Board of Education (ISBE).  The Firm is certified by the ISBE to deliver this training.

While the training requirements may seem cumbersome, the Firm is here to help.  As part of the five hours of free in- service training we annually provide to our clients, we offer to provide instruction on these and other board governance related matters.  We urge you to take advantage of this free service and to contact an attorney Scariano, Himes and Petrarca with any questions about newly elected school board members or newly constituted boards.

 

 

SCHOOL BOARDS MUST NAME EMPLOYEES AGAINST WHOM FINAL ACTION IS TAKEN

March 3, 2013

By Parker Himes

According to a recent opinion letter issued by the Office of the Attorney General, school boards may not withhold the names of employees against whom final action is taken. As a result, employees’ names must be used in the motion to be voted upon, but the decision does not address whether the employee name must be listed in the agenda.

Opining on a recent board decision to dismiss an employee, the Office of the Attorney General concluded that referring to an employee as “Employee A” during a termination vote taken at an open meeting violates the Open Meetings Act (“OMA”).   The Attorney General stated that by identifying the employee only as “‘Employee A,’ the public was deprived of any meaningful information concerning the practical effect of the Board’s decision.”  Further, it concluded that by not identifying the subject of the dismissal by name, “the Board did not fully comply with the requirements of section 2(e) of OMA that it ‘inform the public of the business being conducted.’”

Finally, the opinion letter addressed a board’s belief that the privacy interests of individual employees who are dismissed for cause outweigh the public’s right to learn the employee’s identity.  The Attorney General wrote that while this view is understandable, the OMA “does not permit a board to decline to reveal the identity of employees who are dismissed from public service in order to avoid embarrassment.  The public is entitled to information regarding the performance of public employees, particularly when their performance falls so far below accepted standards as to warrant discipline or discharge.”

In order to comply with the OMA, school boards must now identify by name employees against whom final action is taken.

Illinois Legislature Passes Law Affecting Filing Period For School Board Candidates

 December 3, 2012

By: Alan M. Mullins

Today, Governor Quinn signed into law Senate Bill 3338.  This legislation alters the filing period for the 2013 consolidated election only.  The last day for filing candidate nomination papers has been moved from December 24, 2012 to December 26, 2012. Although the legislation was reportedly passed so local election officials do not have to be available to accept nomination papers on December 24, 2012, the law does not specifically provide that. Consequently, the plain language of Senate Bill 3338 only extends the filing period to December 26, 2012 and the Election Code can be read to still require that local election officials be available to accept nomination papers on December 24, 2012. Accordingly, there remains a possibility that someone will try to use the ambiguity in Senate Bill 3338 to claim that they were denied a right to file their nomination papers on December 24, 2012.

As a result of this new legislation, the last day for filing objections to nomination papers will be January 3, 2013 instead of January 2, 2013 and the last day for conducting a candidate lottery will be January 4, 2013 instead of January 2, 2013. We recommend that school districts post the new dates at their district offices and on their web sites.

 Should you have any questions regarding the filing of candidate nomination papers, you can contact Alan Mullins at (312) 565-3100 ext. 236.

New Open Meetings Act Requirement Pertaining to Board Agenda Descriptions to Take Effect in Weeks

November 29, 2012

By:  Adam Dauksas

 As we noted in an earlier e-blackboard article, beginning January 1, 2013, the Open Meetings Act will require that a board of education’s meeting agenda “set forth the general subject matter of any resolution or ordinance that will be the subject of final action” during the meeting to which that agenda pertains.  Again, this change in the law is directly aimed at eliminating the wide-spread practice of using vague action item descriptions, such as one word statements (e.g. “Budget”) or opaque phrases (e.g. “Action Following Closed Session”).

While this particular change to the Act has yet to officially take effect, Scariano, Himes and Petrarca, Chtd. continues to see a significant number of boards describe their action items in relatively ambiguous terms. You can comply with the Act by generally describing the recommended action.  For example, “Action: dismissal of certified employee” could be used when a teacher is recommended for termination, without including the teacher’s name on the agenda.  Failure to have a compliant agenda item may invalidate any final action, so it is important you share this information with whoever prepares the agenda.

 Should you have any questions regarding the Open Meetings Act or this recent change, please do not hesitate to contact Scariano, Himes and Petrarca, Chtd.

 

 

Discussion of General Budgetary Matters in Closed Session Violates the Open Meetings Act

August 20, 2012

By: Adam Dauksas

This is the second eBlackboard in a three-part series discussing recent developments relating to the Open Meetings Act.

Recently, the Attorney General issued a binding opinion declaring that a downstate village board’s personnel and finance committees had violated the Open Meetings Act (the “Act”) by discussing budgetary matters in meetings closed to the public pursuant to Section 2(c)(1) of the Act.

Section 2(c)(1) of the Act permits a public body to meet in closed session to discuss “[t]he appointment, employment, compensation, discipline, performance or dismissal of specific employees of the public body . . . .”  The village committees relied on this exception in going into closed session where they discussed not only the employment of specific employees, but also general budgetary issues, including staffing needs, the effect of certain staff reductions, which services were most valuable to its residents, and strategies for balancing its budget.

In concluding that such broad-based financial discussions fell outside the scope of Section 2(c)(1), the Attorney General stated that “[t]he exception is not intended to allow private discussions of fiscal matters, notwithstanding that they may directly or indirectly impact the employees of the public body.”  Section 2(c)(1) is meant, instead, to allow public bodies, including school boards, “to candidly discuss the relative merits of individual employees, or the conduct of individual employees.”

Of course, certain fiscal choices may ultimately lead to discussions and decisions as to which specific employees to retain and which to let go, especially in light of the fact that a public entity’s budget is devoted largely to employee salaries.  But, according to the Attorney General, these issues are separate.  “To the extent that a public body is required to discuss the relative merits of individual employees as a result of its fiscal decisions, such discussions may properly be closed to the public under section 2(c)(1) of OMA.  The underlying budgetary discussions leading to those decisions, however, may not be closed to the public.”

Thus, in following the Attorney General’s opinion, it is imperative that boards of education distinguish between conversations regarding general budgetary matters (which must be held in open session), and discussions concerning the employment of specific individuals (which may be held in closed session) in order to avoid violating the Act.  And, in doing so, remember that simply because a budgetary decision may affect specific employees, it does not mean that the fiscal discussions leading up to that decision may be held in private.

Should you have any questions regarding this issue or any other aspect of the Open Meetings Act, please do not hesitate to contact Scariano, Himes and Petrarca, Chtd.

New Open Meetings Act Requirements Pertaining to Board Agendas

August 16, 2012

By: Adam Dauksas

Last month, Governor Pat Quinn signed into law House Bill 4687, which amends the Open Meetings Act in two significant ways.

First, beginning January 1, 2013, a board of education’s (or other public entity’s) agenda must set forth the general subject matter of any resolution or ordinance that will be the subject of final board action during the meeting to which that agenda pertains.  (Note: an earlier version of House Bill 4687, which was scrapped in the Senate, would have required a board’s agenda to be “sufficiently descriptive” to give the public reasonable notice of not only items set for final action, but also those items that would simply be under consideration).  This change is aimed at eliminating the practice of using vague agenda item descriptions, such as one word statements (e.g. “Budget”).  The more descriptive a board is with respect to its agenda items, the more likely it will be in compliance with this new legislation.

Second, this new legislation also requires that a board of education and other public entities have at least one copy of their notice and agenda “continuously available” for public review during the 48 hours immediately preceding its meeting.  Simply posting the board’s notice and agenda continuously on the District’s website within the requisite time frame will satisfy this requirement.

Most school districts are already complying with this new requirement as the Open Meetings Act currently requires that an agenda be posted at the District’s principal office and at the location where its meeting will be held at least 48 hours in advance.  However, as a result of a recent court case involving an Illinois municipality that posted a meeting agenda in a facility that was locked on the weekends and thus, not accessible to the public, the Act was amended to require that the agenda be “continuously available.”

Should you have any questions regarding the Open Meetings Act or its recent amendments, please do not hesitate to contact Scariano, Himes and Petrarca, Chtd.

Timely Approving and Making Available Board Minutes Under the Open Meetings Act

April 23, 2012

By: Adam Dauksas

This is the final eBlackboard in a three-part series discussing recent developments relating to the Open Meetings Act.

As of January 1, 2011, Section 2.06(b) of the Open Meetings Act requires boards of education, and all other public bodies, to approve the minutes of an open meeting within 30 days after that meeting or at its second subsequent regular meeting, whichever is later.   In addition, the Act requires that the minutes of an open meeting be made available for public inspection within 10 days after the approval of those minutes by the board.  Despite these requirements having taken effect over a year ago, we continue to see non-compliance with them.

Prior to these specific amendments to the Act, all that was required of public bodies was to make available to the public their open meeting minutes within seven days of the approval of those minutes.  But there was no time limit within which open meeting minutes had to be approved.  Thus, public bodies could avoid publicizing their open meeting minutes for indefinite periods of time, yet still technically comply with Act.

Section 2.06(b) also now requires school districts that have a website that is maintained by its full-time staff to post the minutes of a regular open meeting on its website within 10 days after the approval of those minutes, and any open meeting minutes that are posted on the district’s website must remain up on the website for at least 60 days after their initial posting.  Under the previous version of the Act, districts had only seven days to post approved minutes to their websites.

In sum, it is important to remember that the Act now requires that school districts: (1) approve open meeting minutes within 30 days of the meeting or at their second subsequent meeting, whichever is a longer time period; (2) make open meeting minutes available for public inspection within 10 days of approval of those minutes; and (3) within 10 days after approval, post the minutes on the district’s website for a period of not less than 60 days.

Should you have any questions regarding these requirements or any other aspect of the Open Meetings Act, please do not hesitate to contact Scariano, Himes and Petrarca, Chtd.

SCHOOL DISTRICTS NO LONGER HAVE ANY DUTIES REGARDING SCHOOL BOARD ELECTIONS

February 24, 2012

By: Alan M. Mullins

There have been substantial changes to the School Code and the Election Code that affect the candidate process for school board elections.  Effective immediately, school board members will no longer be involved in the electoral process.  That is good news for school districts as they will no longer have to devote employee time and district money to various electoral duties.  The changes bring a bit of a burden to school board candidates, however, as they will no longer have the convenience of filing nomination paper s at the local school district office. Instead, the petitions must be filed at the county clerk’s or board of election commissioners’ office. If a school district is located in more than one county, the nomination papers are filed with the county clerk or county board of election commissioners of the county in which the school district administrative offices are located.    In addition, other proceedings such as candidate lotteries and objection hearings will also be conducted at those less convenient offices.

Even with these statutory changes, the receipt showing that the candidate filed a statement of economic interests with the county clerk must be filed with the county clerk or the board of election commissioners along with the nomination petitions. The former requirement of filing this receipt with the school district has been eliminated. And as before, it is not enough that incumbent board members filed a statement of economic interests with the county clerk earlier in the year, the receipt still needs to be file d with the county clerk during the filing period.

The School Code previously provided that school districts could make petition forms available for candidates and give notice of the petition filing period.  Now it provides that those courtesies may be extended by the county clerk or the county board of election commissioners. With the recent changes, however, the General Assembly failed to prohibit school districts from continuing to provide these courtesies. Thus, school districts can continue to extend those courtesies if they wish.  In light of the changes to the School Code and Election Code, there will be new nomination forms for the 2015 school board elections.

Before the recent legislative changes, there were a number of duties school districts performed because nomination papers were filed there.  Such duties included conducting a lottery for candidates who simultaneously filed when the doors opened on the first day for filing,  giving candidates certain notices and receipts,  receiving objections and conducting objection hearings,  and certifying candidates.  School districts no longer have these duties.  Objections to nomination papers will now be filed with the county clerk or the county board of election commissioners.  If the school district is located in parts of two counties, the objection hearing might not even be conducted in the county in which the candidate lives.  Additionally, objections will be heard by the county officer’s electoral boards and those boards usually hear objections during daytime hours.  With these changes, it is possible that some potential school board candidates will be deterred from running for office or defending their petitions, or some objectors will be deterred from objecting to petitions.  School board elections rarely want for dramatic flair and with the recent legislative changes, the April 2015 school board elections will certainly be interesting.

Updated School Board Nomination Petition For The 2011 Election

September 29, 2010

By: Alan M. Mullins

The first day school board candidates could circulate nomination petitions was September 21, 2010.  School districts can, but are not required to, make copies of petitions available to candidates. Based on information provided to us by the Illinois State Board of Elections, in an e-blackboard dated September 13, 2010, we previously reported to you that the petition for school board candidates had not changed since the last election. However, we recently learned the petition underwent minor revisions.  Previously, “IL” appeared in the section for voters’ signatures under the column labeled “County”.  It now appears under the column before that labeled “City, Town or Village”.  There are no other revisions to the petition except that it states “Revised May, 2009” at the top.

A copy of the new petition can be accessed by clicking on the following link:  School Board Nomination Petition for the 2011 Election.

Recent Election Code Amendments.

 September 13, 2010

By: Alan M. Mullins

This year, as in past years, Scariano, Himes and Petrarca is publishing an Election Manual for use by school districts in conjunction with the April 5, 2011 election.  The Election Manual is a “how to” guide with practical recommendations regarding compliance with the Election Law.  The Manual describes the entire election process from candidate nomination to the certification of candidates and will be mailed to clients by early October.

In the meantime, you should be aware that the first day for circulating nomination petition sheets is September 21, 2010.  You are not required to provide petition sheets to candidates, but may do so.  The petition sheets have not been changed since the last election.  If you need a copy of the petition sheet and/or the statement of candidacy, please contact Alan M. Mullins at 312-565-3100, Ext. 236 or amullins@edlawyer.com.

If you would like to receive an electronic copy of the election manual, please provide your email address by clicking here.

New Legislation Requires Referendum Petitions And Candidate Nomination Papers To Be Filed, And Referendum Resolutions To Be Approved, Earlier Than In The Past

July 12, 2010

By: Alan M. Mullins

On July 6, 2010, the Governor signed into law legislation amending the Illinois Election Code.  The legislation changes the deadlines for voters to file petitions proposing referenda and for boards of education to approve resolutions proposing referenda.  The legislation also changes the period for school board candidates to file their nomination papers.  Those actions must now occur significantly earlier before the election than in the past.

Previously, voters had to file petitions proposing referenda at least 70 days before the election.  Those petitions must now be filed at least 92 days before the election.  School boards had 65 days prior to an election to approve resolutions proposing referenda.  They now must approve those resolutions at least 79 days before the election.  Last, school board candidates previously had to file their nomination papers between 78 and 71 days before the election.  Now they must file their nomination papers between 113 and 106 days before the election.

The following list identifies the dates by which petitions and nomination papers have to be filed, and resolutions have to be approved, for the next three elections.

November 2, 2010 Election

  •     Voters referendum petition - Monday, August 2, 2010.
  •     Board referendum resolution - Sunday, August 15, 2010 (extended to Monday, August 16, 2010).

February 22, 2011 Election

  •     Voters referendum petition - Monday, November 22, 2010.
  •     Board referendum resolution - Sunday, December 5, 2010 (extended to Monday, December 6, 2010).

April 5, 2011 Election

  •     Voters referendum petition - Monday, January 3, 2011.
  •     Board referendum resolution - Sunday, January 16, 2011 (extended to Tuesday, January 18,     2011 due to Martin Luther King Day).

Nomination papers for school board candidates must be filed starting on Monday, December 13,2010 and ending on Monday, December 20, 2010.

Other than on legal school holidays, the district must have someone at the district office during normal business hours (except for December 20, 2010 when the office must remain open until 5:00 p.m.) to accept petitions, even if the dates above fall within Winter Break.

If you have any questions regarding the dates discussed above or the election process, please contact Alan Mullins at (312)565-3100, ext. 236.

Open Meetings Act Update

 

January 22, 2010

By: Trisha Olson

All public bodies, including school districts, should review their Open Meetings Act (the “OMA”) practices in light of recent amendments to the OMA and a recent Illinois Appellate court decision.

Public Act 96‐542

In addition to making sweeping changes to the Illinois Freedom of Information Act (“FOIA”), Public Act 96‐542 made changes to the OMA.  While the core procedures for conducting open and closed meetings have not changed, the OMA was amended to require every public body to designate two or more employees, officers or members to receive training on compliance with the OMA, by June 30, 2010.  The names of designees must be submitted to the Public Access Counselor of the Illinois Attorney General’s Office.  Trainings will be available for free on the Illinois Attorney General’s website starting on February 1, 2010.  We recommend that at least one district‐level administrator, as well as the individual responsible for posting notices of meetings and meeting agendas, be designated to receive the training. After June 30, 2010, whenever a public body designates an additional employee, officer or member to receive the training, that individual must successfully complete the training within 30 days.

The OMA was also amended to provide that when the State’s Attorney reviews a public body’s meeting records for non‐ compliance, those records may not be disclosed to the public while in the State’s Attorney’s possession. Further, those records are exempt from disclosure under FOIA while in the possession of the State’s Attorney.

The OMA was also amended to establish a Public Access Counselor (“PAC”) within the office of the Attorney General who must investigate reports of non‐compliance with the OMA.  The PAC will review written complaints and determine what further action, if any, is warranted.  If an investigation is initiated, the amended OMA sets timelines for the investigation, including requesting and furnishing records to facilitate the review of the complaint. Any records received by the PAC in the course of an investigation may not be disclosed to the public, and are exempt from FOIA disclosure. The PAC must issue its findings and conclusions within 60 days after the review was initiated.  The PAC’s conclusion is binding upon the requester and the public body, but is subject to review under the Administrative Review Law.   The Attorney General may also file a civil action to compel compliance with the PAC’s determination.

Second District Decision: In Re Foxfield Subdivision

Recently, the Appellate Court of Illinois (Second District) clarified certain posting, meeting and agenda requirements under the OMA.   In the case of In Re Petition to Disconnect Certain Territory Commonly Known as the Foxfield Subdivision and Adjoining Properties from the Village of Campton Hills, the Village gave the required 48‐hour notice for a special meeting, but the notice was posted in a building that was closed to the public and locked during non‐business hours.  The court determined the notice was appropriate and stated that notice is not required to be continuously available during those 48 hours prior to a meeting.

The court also determined that the Village did not violate the OMA when it waited until “the wee hours of morning” in “cold and blustery” weather to bring a meeting out of closed session.  The court determined that the Illinois legislature has not required that closed meetings be held at certain times and only during good weather.

Finally, the court determined that where the agenda for a special meeting includes language that is “closely related to,” “germane,” and “pertinent” to the topics discussed, notice is sufficient.

This case and the recently enacted changes to the OMA serve as a useful reminder to remain vigilant in complying with the Act’s procedural requirements. Despite the Second District’s decision in favor of the public body in the case of In Re Foxfield Subdivision, public bodies should not relax their practices regarding OMA posting, meeting and agenda requirements because Illinois courts conduct fact‐specific examinations of board actions under the OMA.  If you would like assistance interpreting the OMA or reviewing your OMA policy or procedures, please do not hesitate to contact Scariano, Himes and Petrarca.