The Illinois Supreme Court provides guidance on the Open Meetings Act

This year, the Illinois Supreme Court issued an opinion in Bd. of Educ. of Springfield Sch. Dist. No. 186 v. Attorney Gen. of Illinois, 2017 IL 120343, affirming the lower court’s reversal of the Attorney General’s conclusion that the Springfield School Board (School Board) violated the Open Meetings Act (Act) (5 ILCS 120/1 et seq. (West 2012)).

Background

The School Board sought administrative review of the Attorney General’s conclusions that the School Board had impermissibly terminated the superintendent’s employment by taking final action during a closed board session and that it had failed to adequately inform the public of the proposed termination prior to a subsequent public meeting. ¶ 1.

On January 31, 2013, Dr. Walter Milton, Jr., the then-superintendent of the Springfield school district, signed a separation agreement that the School Board previously discussed in several closed sessions. ¶ 5. On February 4, 2013, during a closed session, six of the seven School Board members signed the agreement, but did not date it; counsel advised the Board that the matter was not final until a public vote was taken on the agreement. ¶ 5.

On March 1, 2013, the School Board posted on its website the March 5, 2013, Board’s public meeting agenda which included the following item: “Approval of a Resolution regarding the Separation Agreement and Release between Superintendent Dr. Walter Milton, Jr., and the Board of Education.” ¶ 8. The website also linked to both the proposed resolution and to the separation agreement. ¶ 8. At the March 5, 2013, meeting, the School Board president introduced this agenda item by stating “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.” ¶ 9 No public vote was taken on this separation agreement. ¶¶ 70-71.

The Attorney General then issued a binding opinion finding that the Board violated the Open Meetings Act in part because the government official failed to provide a sufficient verbal explanation of the proposed resolution at the March 5, 2013, meeting. ¶ 16. The Circuit Court of Sangamon County reversed the Attorney General’s opinion, finding compliance with the Act, which the Fourth District Appellate Court subsequently affirmed (2015 IL App (4th) 14094). ¶¶ 1, 17-18.

Affirming the lower court orders, the Supreme Court in its opinion considered several issues concerning the Board’s compliance with the Open Meetings Act: first, whether posting the agenda on the website complies with section 2(c) of the Act; second, whether the requirement of a public recital prior to a closed session mandates an explanation of the significance of the contemplated action; third, whether the Act requires a final public vote of matters considered in closed session; and finally whether the School Board complied with the public recital requirement in section 2(e). ¶ 20.

Compliance with the Agenda Requirement

The School Board posted the March 5, 2013, agenda on its website four days prior to the meeting. ¶ 31. The Supreme Court found that though the agenda’s contents complied with the Act, simply posting the agenda on the website “cannot fulfill the public recital requirement of section 2(e)” of the Act, which is required before any public body’s closed session. ¶ 35.

Review of section 2(e) of the Open Meetings Act, in which “a public recital must take place at the open meeting before the matter is voted upon.”

The Supreme Court then held that under “section 2(e) of the Open Meetings Act, a public recital must take place at the open meeting before the matter is voted upon. The recital must announce the nature of the matter under consideration, with sufficient detail to identify the particular transaction or issue, but need not provide an explanation of its terms or its significance.” ¶ 64

In its determination, the Supreme Court agreed with the Attorney General’s holding that the recitation of the matter considered must occur during the open meeting prior to the public body’s closed session. ¶ 39. However, the Court differed with the Attorney General’s opinion with regards to the specificity of this recitation, holding that the “public recital of the nature of the matter being considered” means that the public body must state the essence of the matter under consideration, its character, or its identity. ¶¶ 46-47. Further, compliance with section 2(e) only requires the disclosure of nonspecific terms of the action to be taken such as “the approval of a loan, a contract, a purchase, a policy, or a resolution” and other information “necessary to inform the public of the specific item of business (the purpose of the loan, the subject of the contract, the type of property being purchased, the title of the policy, or the purpose of the resolution).” ¶ 50. The Court then held that the recital can be more detailed including disclosure of key terms of the issue under review, but section 2(e) does not mandate it. ¶ 61.

Validity of the School Board’s Approval of the Separation Agreement

The Attorney General’s opinion raised two errors regarding the separation agreement’s validity for non-compliance with the Open Meetings Act: first, the School Board cannot take final action at a closed meeting; and, second, the Board did not make an adequate recital of the issue at the open meeting. ¶ 66.

The Supreme Court confirmed what both parties acknowledged: that whatever happened at the closed meeting cannot by definition be considered a final action for “under the plain language of section 2(e) of the Open Meetings Act, the public vote is not merely a ratification of a final action taken earlier in a closed session; it is the final action. Without the public vote, no final action has occurred.” ¶¶ 70-71, 74.

No violation of the Open Meetings Act occurred with regards to the sufficiency of the public recital at the March 5, 2013, public meeting. The Supreme Court concluded that the School Board president’s statement regarding the general nature of the matter under consideration (“a separation agreement and release between Dr. Milton and the Board”) complied with the public recitation requirement’s purpose. ¶ 84. To hold to the Attorney General’s position would require a public reading of the 16-page agreement, which the Court found unnecessary. ¶ 84.

By affirming the lower court’s interpretation rejecting the Attorney General’s position (¶¶ 86-87), counsel now has guidance on how specific the public recitation should be prior to a closed session. 