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.

    Tags:    Board Governance

                Reorganization

                OMA

                PERA

                Personnel

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  

RECENTLY ENACTED LEGISLATION AFFECTING SCHOOL DISTRICTS

September 2, 2016

             As school districts begin a new school year, Scariano, Himes and Petrarca, Chtd. is pleased to provide the following summary of some of the new laws that may affect your district’s operations. To access our recent eBlackboard on the Local Government Travel Expense Control Act, which was approved by Governor Rauner on July 22, 2016, please click here.  If you have any questions or concerns about the following, please contact your attorney at Scariano, Himes and Petrarca, Chtd. 

Student Residency Procedures

 Public Act 99-0670 

            This amendment to the School Code makes several significant changes to the process by which school districts adjudicate student residency matters. As of January 1, 2017:

 1. The school district’s initial determination that the student is a non-resident must detail the specific reasons why the school district arrived at that determination.

 2. If a hearing is requested, at least 3 calendar days before the hearing, both parties must submit to each other all written evidence, testimony, and a list of witnesses. The hearing notice sent by the school district must notify the person requesting the hearing that if the above is not disclosed in time, it will be barred at the hearing unless the other party consents.

 3. Extends the deadline for a school board to decide residency matters to 30 calendar days (from 15) after the conclusion of the hearing.

4. Gives the person who enrolled the student the ability to petition the regional superintendent for review of the board’s decision regarding the student’s residency and details the procedures governing that review.

 Open Meetings Act and Transparency of IMRF Retirement Payments

 Public Act 99-0646

             This law requires school boards to discuss, and disclose, at a minimum, the following at an open meeting before making a “disclosable payment” to IMRF employees (a payment that would increase the employee’s reportable monthly earnings by at least 6%, and is made between a year and 90 days before the employee retires) who began participation in IMRF before January 1, 2011, and are not subject to a collective bargaining agreement: (1) the employee’s name; (2) the purpose and amount of the increase or payment; (3) the employee’s retirement date; (4) the effect of the payment upon the employee’s expected retirement annuity; and (5) the effect of the payment upon the liability of the employer to the Article 7 fund.

FOIA – Noncompliance and Associated Fees and Presumptions

 Public Act 99-0586 

            This Public Act makes the following changes to the Freedom of Information Act effective January 1, 2017:

 1. If a requester seeks relief in circuit court after a request is denied, there will be an automatic presumption that the school district willfully and intentionally failed to comply with FOIA if: (1) the Attorney General’s Public Access Counselor (“PAC”) issued a binding opinion regarding the request; (2) the school district does not seek administrative review of the PAC’s opinion within 35 days of being served with the PAC’s opinion; and   (3) the school district does not comply with the PAC’s opinion within 35 days of being served with the PAC’s opinion.

 2. The school district can rebut the presumption in #1 above by showing that it is making a good faith effort to comply with the PAC’s opinion, but compliance was not possible within the 35-day time frame.

 3. If a requester seeks relief in circuit court after a request is denied, and the court determines that the school district willfully and intentionally failed to comply with FOIA, or acted in bad faith, an additional penalty of $1,000.00 (on top of any civil penalties assessed per occurrence of bad faith or willful non-compliance) may be imposed for each day non-compliance continues if: (1) the school district fails to comply with the court’s order after 30 days; (2) the court’s order is not on appeal or stayed; and (3) the court does  not allow additional time for compliance with the court order. 

Speech Rights of Student Journalists Act

 Public Act 099-0678 

            Effective July 29, 2016, public high school students who gather, compile, write, edit, photograph, record, or prepare information for dissemination in school-sponsored media have the right to exercise freedom of speech and press in school-sponsored media, regardless of whether the media is supported financially by the school district or produced in conjunction with a class. The Act prohibits prior restraint of material prepared for official school publications unless the speech is: (1) libelous, slanderous, or obscene; (2) constitutes an unwarranted invasion of privacy; (3) violates federal or State law; or (4) incites students to commit an unlawful act, to violate policies of the school district, or to materially and substantially disrupt the orderly operation of the school. The Act places the burden on school officials to show justification without undue delay prior to limiting the student speech that is in question, and provides civil and criminal immunity to school districts, employees, and parents/guardians for student expression, except in cases of willful or wanton misconduct. 

Prevailing Wage Resolutions

Senate Bill 2964 (vetoed) 

            Senate Bill 2964’s most significant amendment to the Prevailing Wage Act would have required the locally approved prevailing wage to be no less than the rate for similar work performed under collective bargaining agreements in the area so long as those agreements covered at least 30 percent of workers on the project. However, on July 22, 2016, Governor Rauner issued an amendatory veto, which returns the bill to the House and Senate. Both houses can vote to either accept the Governor’s proposed amendments with a simple majority, or with at least 60% of the vote in both houses, override the Governor’s amendatory veto. Unless either of those actions happen, SB 2964 is dead. 

School Construction Projects and Zoning Compliance

Public Act 99-0890 

            Boards of education are now required to comply with any valid local government zoning ordinance or resolution that applies where the pertinent part of the school district is located. This law amends the Counties Code, Township Code, and Illinois Municipal Code and requires counties, townships, and municipalities to make reasonable efforts to streamline the zoning application and review processes for school boards and minimize the administrative burdens involved in the zoning review process. This includes requiring counties, townships, and municipalities to reduce application fees and other costs, limiting the number of times a school board must amend site plans, and reduce the number of copies that need to be submitted to each body of local government during the zoning review process.  

Amendment to the School Breakfast and Lunch Program Act

 Public Act 99-0850 

            This law requires school boards to provide “breakfast after the bell” (i.e. breakfast in class, grab and go breakfast, and second-chance breakfast) to students in each school building: (1) in which at least 70% of students qualify for free or reduced-price lunches based upon the previous year’s October NSLP claim; or (2) in which at least 70% of students are low-income based upon the Fall Housing Data from the previous year (for schools that do not participate in the NSLP). The effective date of the law is January 1, 2017. However, the program would not need to be implemented until the first school day of the 2017/2018 school year. 

            There is a “safe-haven” for school districts who are already providing school breakfast effectively to 70% or more of free or reduced-price-eligible students or if expense reimbursement would not cover the costs of implementing a “breakfast after the bell” program. The board must hold a public hearing and pass a resolution if it finds that, pursuant to a cost analysis, the reimbursement would not cover the cost of the program. 

Food Contracts

 Public Act 99-0552 

            Effective July 15, 2016, school boards are prohibited from entering into a contract to purchase food if the contract terms prohibit the board or school district from donating food to food banks, including, but not limited to, homeless shelters, food pantries, and soup kitchens. 

Insuring School Buses

 Public Act 99-0595 

            Allows the Illinois Vehicle Code’s minimum insurance requirement for school buses of $2,000,000 to be satisfied by either: (1) a $2,000,000 combined single limit primary commercial automobile policy; or (2) a $1,000,000 primary commercial automobile policy and a minimum $5,000,000 excess or umbrella liability policy. 

Prohibition of Employers’ Access to Employees’ and Applicants’ Online Accounts

 Public Act 99-0610 

            Effective January 1, 2017, the Right to Privacy in the Workplace Act will be amended to prohibit employers or prospective employers from requiring or coercing any employee or applicant for employment to: (1) provide their username, password, or any other information that would allow the employer or prospective employer to gain access to the employee’s or applicant’s personal online account; (2) access the employee’s or applicant’s personal online account in the presence of the employer or prospective employer; (3) invite the employer to join a group affiliated with any personal online account of the employee or applicant; and (4) join an online account established by the employer or add the employer to the employee’s or applicant’s list of contacts that enable the contacts to access the employee’s or applicant’s personal online account. The amendments also prohibit employers from retaliating against employees who refuse to do any of the above.

             The amendments also carve out several “safe havens” for employers who may, under certain circumstances, need to screen, access, or gather content from employees’ or applicants’ personal online accounts. 

Withdrawal from Special Education Joint Agreements (Elementary Schools)

 Public Act 99-0729 

            This law amends the School Code immediately to allow elementary school districts (maintaining grades up to and including the 8th grade) to withdraw from special education joint agreements subject to various, specific conditions.

ADA Training During Teacher Institute Days

 Public Act 99-0616 

            Beginning with the 2016-2017 school year, teacher institute days must include, at least once every 2 years, professional development on the subject of the Americans with Disabilities Act as it pertains to the school environment.

Interfund Transfers

 Public Act 99-0713 

            In a previous eBlackboard, we told you that Section 17-2A of the School Code granted boards of education the authority to transfer money between the Educational, Operations and Maintenance and Transportation Funds for any reason, but that authority would expire on June 30, 2016. Through Public Act 99-0713, the legislature has extended the authority for the transfers under Section 17-2A to June 30, 2019. In addition, Section 17-2.11(j), which grants boards of education the authority to transfer surplus life safety tax revenue and interest to the Operations and Maintenance Fund, was similarly extended. Both types of transfers require notices, hearings and resolutions. 

Monthly Reports of Concussions from High Schools

 Public Act 99-0831 

            This law immediately requires the IHSA to mandate its member schools that employ certified athletic trainers to complete a monthly report on concussions suffered by its student-athletes during a school-sponsored activity or event. This mandate requires the reporting to take place immediately during the months of the 2016-2017 school year. The law provides immunity to IHSA-member high schools from civil and criminal liability that could result from reporting the required information, except for willful or wanton misconduct. The law also gives the IHSA the authority to “take action” against a member school if the member school fails to adhere to its reporting requirements. 

Epi-Pen Administration

 Public Act 99-0711 

            We previously reported on amendments to the School Code that affected epinephrine administration in schools. This law further amends those School Code provisions to add school buses to the list of locations where asthma medication and epinephrine auto-injectors (better known as Epi-Pens) can be carried and administered. Additionally, if a school district’s independently-contracted transportation provider maintains a supply of undesignated Epi-Pens, the amendments require those school districts to send a report to ISBE detailing how many undesignated Epi-Pens are in the transportation contractor’s supply. Recall that “undesignated” Epi-Pens are prescribed in the name of a school district instead of a particular student.    

Charter School Authorizations and Renewals

 Public Act 99-0840 

            This law amends the Charter Schools Law to provide that initial charters granted on or after January 1, 2017 shall be for 5 school years. Additionally, charters granted on or after the bill’s effective date may be renewed by a local board for incremental periods not to exceed 10 school years, and not to exceed 5 school years if renewed by the Charter Schools Commission.

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

By Adam Dauksas

 April 28, 2016

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.  

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.

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

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 pub lic 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 th at 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 meetin g. 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 identif ying 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

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.

SCHOOL DISTRICTS NO LONGER HAVEANY DUTIES REGARDING SCHOOL BOARD ELECTIONS

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 ne ws 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 wer e 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  conductingobjection  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 he aring might not even be conducted in the county in which the candidate lives.  Additionally, objections will be heard by the county officers 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 fr om 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.

OMA - Final Action

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

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  ver bal  expl anati on  of  t he  “pe rt i nent  ter ms”  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.

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 identi fying 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 understanda ble, 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.

SCHOOL DISTRICTS NO LONGER HAVE ANY DUTIES REGARDING SCHOOL BOARD ELECTIONS

February 16, 2013

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 ne ws 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 wer e 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  conductingobjection  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 he aring might not even be conducted in the county in which the candidate lives.  Additionally, objections will be heard by the county officers 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 fr om 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.

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 MinutesUnder 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.

GIFT BAN ACT BASICS

November 12, 2010

By: Justino D. Petrarca and Jessica M. Bargnes

The ethical conduct of elected officials and governmental employees including school board members and district employees has come under increased scrutiny over the years.  As the date of the Illinois Association of School Board’s 2010 Joint Annual Conference approaches, Scariano, Himes and Petrarca, Chtd. would like to remind you about the prohibitions contained in the Illinois Gift Ban Act. The Act generally prohibits a board member or district employee from soliciting or accepting any “gift” - including food and drink - from any “prohibited source” as defined in the Act, or in violation of any State or federal law.  

1.          MANDATE

The Gift Ban Act generally prohibits public officials and/or employees from soliciting or accepting any gift from a "prohibited source."   The mandate covers Board members, employees (full and part time), and Board member or employee spouses and immediate family members  residing with the Board member or employee.  This prohibition  is very broad and applies unless the "gift" fits one of the exceptions noted in number 3 below.

2.          "PROHIBITED SOURCE"

A "prohibited source" is any person or entity which:

a.         Seeks official action from the Board, its members or employees;

b.         Does business or seeks to do business with the board, its members or employees;

c.         Conducts activities regulated by the Board, its members or employees;

d.          Has interests that may be substantially  affected  by the performance  of duties of the Board, its members or employees; or

e.         Has registered  or is required  to  be registered  with the  Secretary  of  State  as  a

"lobbyist."

3.          GIFT  BAN EXCEPTIONS

There are several exceptions to the Gift Ban Act.   Below we highlight only those most relevant to the upcoming IASB conference in Chicago.

The restrictions of the Act do not apply to:

a.         Opportunities,  benefits and services  available on the same conditions  as for the general public (i.e. theater tickets).

b.         Anything for which the Board, its members or employees pay market value.

c.         Educational materials and "missions" having a close connection to the recipient's office or employment; that predominantly benefit the public, not the recipient; and that are approved by the recipient entity's  local ethics officer in advance of the "mission" or receipt  of materials.    If advance  approval  is not practicable,  then approval must occur as soon thereafter as practicable, with a detailed explanation as to  why  advanced  approval  was  not  possible.    At the  IASB  conference,  be conscious of those gifts distributed in the vendor exhibition hall.

d.          Travel expenses having a close connection to the recipient's    office or employment,   and  which  predominantly benefit  the  public,  not  the  recipient.These  travel  expenses  must  be  in  a  manner  and  style  characteristic  with  the conduct of State business and are subject to the same prior approval requirements noted above.  Beware oflimousines!

e.               Food and refreshments  not exceeding $75 per person per calendar day.   In order to qualify for this exception the food must be either catered or consumed  on the premises from which the food was purchased or prepared.

f.           Any item(s)  from  any one prohibited  source  during  any calendar  day having  a cumulative  total  value  of less than  $100.   With this  exception,  a school  board member or district employee most likely may accept the souvenirs offered at the IASB Joint Annual Conference vendor exhibition hall!

With regard to the IASB Joint Annual Conference,  we caution that the greatest scrutiny will be focused  on thecost and location of hotel rooms, theoccupants  of those  rooms (relatives,  friends,  etc.),  transportation  expenses  to,  from,  and  during  the  conference, meals,   liquor  purchases,  tours,  tickets  to events  (plays,  concerts,   etc.),  and  other items/services of value that may not easily fit any of the noted exceptions.

If you have specific questions about the application of the Illinois Gift Ban Act, please do not hesitate to call Scariano, Himes and Petrarca.  We  look forward toseeing  you atthe Illinois Association of  School Board’s Joint Annual Conference!

Q & A - District Obligations Under the Amended Election Code

November 9, 2010

By  Alan M. Mullins

Public Act 96-1008 moved the time period for filing candidate nomination papers from the second and third weeks of January to the second and third weeks of December.  For the April, 2011 school board election, the first day for filing nominating petitions is December 13, 2010, and the final day is December 20, 2010. The period for filing objections to nominating petitions begins after the last day for filing and continues for the five business days following the final filing date.  Accordingly, the last day for filing objections is December 28, 2010.  The amended Election Code provides that the office of the local election official, often the board or district secretary, must be open until 5 p.m. of that last day, regardless of the regular closing time for the office.  Given that most school districts will likely be out for winter break during at least a portion of the five business day period for filing objections, questions have arisen as to how a school district’s local election official can satisfy the legal requirements of the amended Election Code.

 Does the District’s Administrative Office have to remain open each business day during the time period for filing objections?

 Yes.  The time period for filing objections begins Tuesday, December 21, 2010 and ends at 5:00 p.m. on Tuesday December 28, 2010.

What hours must a District’s Administrative Office Remain Open During the Objection Period?

District offices must remain open for at least seven hours on each of the five days objections may be filed.  The Election Code defines a “business day” as “any day in which the office of (the school district) is open to the public for a minimum of 7 hours.”  Days on which the office is not open for at least seven hours would not be a “business day” as defined by the Election Code.

Does the District’s Administrative Office have to remain open on December 23, 2010?

Yes.  Friday, December 24, 2010 is a State holiday.  However, Thursday, December 23, 2010 is not a State holiday. Accordingly, a District’s administrative offices must remain open on December 23, 2010.

We acknowledge that there are differing opinions and interpretations of the provisions of amended Election Code discussed herein.  While our reading of the statute is narrow and our advice conservative, a District minimizes its risk of violating the statute by remaining open for seven hours each business day during the objection period including on December 23, 2010, with the District’s administrative office remaining open until 5:00 on December 28, 2010.

If you have any specific questions regarding when your District’s office must remain open during the objection period, please contact Alan Mullins at 312-565-3100, Ext. 236 or  amullins@edlawyer.com.

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.