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LEGISLATURE PASSES BILL GRANTING PUBLIC BOARDS GREATER FLEXIBILITY UNDER THE OMA DURING A DISASTER PROCLAMATION

 

June 4, 2020

 

The Illinois legislature recently passed Senate Bill 2135 (“SB2135”), providing school boards and public bodies greater flexibility under the Illinois Open Meetings Act (“OMA”) during disasters, such as the COVID-19 pandemic.  As of this writing, the bill has not been sent to the Governor to become law, but we anticipate the bill will become law in the near future. Until the bill is signed into law, the Governor has extended his executive order which relaxed the OMA (EO 2020-07) via EO 2020-39. Therefore, the following requirements will not take effect until Senate Bill 2135 is signed into law and our eBlackboard issued on March 17, 2020 remains instructive.

 

Significantly, SB2135 permits school boards and other public bodies to hold open and closed meetings virtually if the following conditions are met:

 

• The Governor or the Director of the Illinois Department of Public Health has issued a disaster declaration related to public health concerns because of a disaster as defined in the Illinois Emergency Management Agency Act, and all or part of the jurisdiction of the public body is covered by the disaster area;

• The head of the public body (i.e. Board President) determines that an in-person meeting or a meeting conducted under the OMA is not practical or prudent because of a disaster;

• All members of the body participating in the meeting shall be verified and all members must be able to hear one another and the discussion;

• For open meetings, members of the public present at the regular meeting location can hear all discussion, testimony and votes of the members of the body, unless attendance at the regular location is not feasible due to the disaster. If this is the case, the public body must make alternative arrangements and provide notice in a manner to allow any interested member from the public to contemporaneously hear all discussion, testimony, and roll call votes, such as by offering a telephone number or a web-based link;

• Unless unfeasible due to the disaster, at least one Board member, chief legal counsel, or chief administrative officer (Superintendent) is physically present at the regular meeting location;

• All votes are conducted by roll call so that each member’s vote on each issue can be identified and recorded; and

• All open meetings must be recorded verbatim in the form of an audio or video recording (instead of just the closed session portion).

 

Once SB2135 is signed into law, Illinois school districts will be permitted to hold public meetings virtually so long as the conditions listed above are satisfied. Boards should ensure that the public can listen to the meeting by video or audio, and to retain the verbatim recording of the open session for public access. Except in a bona fide emergency, boards must also provide 48 hours’ notice of the meeting to all board members, the public, and media outlets that request notice under the OMA. The meeting notice and agenda should be posted at the regular meeting location and also be posted on the district’s website.

 

If you have questions regarding SB2135 and your board’s obligations under the OMA during a pandemic or disaster, your HPF attorneys are ready to assist.

 

 

Tags: Board Governance: OMA

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

April 26, 2017

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            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:

 

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

 

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

 

Scariano Himes and Petrarca

 

Board Governance, Personnel

 

OMA, PERA, Reorganization

 

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

​By James Petrungaro

​January 23, 2017

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            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  

 

Scariano Himes and Petrarca

 

Board Governance

 

OMA

 

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