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