At a closed session of the school board, six of the seven members sign a separation agreement with the outgoing school superintendent, but don’t date it. Several weeks later, the Board holds a public meeting. The agenda posted on the website states that the Board will approve “a resolution regarding the separation agreement and release” between the superintendent and the Board. Visitors to the site could follow links to the proposed resolution and to the separation agreement itself, which contained the dated signature of the superintendent and the undated signatures of the board members.
Has the Board violated the Open Meetings Act by taking “final” action in a non-public session? In late January, the Supreme Court unanimously held that the answer was “no” in an opinion by Justice Garman in The Board of Education of Springfield School District No. 186 v. The Attorney General of Illinois. Our detailed summary of the underlying facts and lower court holdings is here.
Board of Education began in late 2012, when the Board and the former superintendent reached agreement on terms of separation. Following the closed meeting at which the agreement was signed, a request was filed with the Public Access Counselor in the Attorney General’s office for a determination of whether the Board had violated the Public Meetings Act.
While that request was pending, the Board’s public meeting took place. During that meeting, the Board president called the agenda item, the Board discussed the matter, and then approved the agreement by a six to one vote. Two weeks later, the Attorney General issued a binding opinion finding that the Board had violated the Open Meetings Act four times, including by signing the agreement in the February closed meeting, and by failing during the public meeting to “adequately inform the public of the nature of the matter under consideration or the business being conducted.” The Board sought administrative review, and the Circuit Court reversed the Attorney General’s conclusion that “final action” in terms of the Act had taken place at the February meeting. The court remanded the matter back to the Attorney General, who issued a second binding opinion finding that the Board’s posting of the agreement on its website was not a “public recital during an open meeting” sufficient to satisfy the Act. The Circuit Court again reversed the Attorney General, finding that the posting of the agenda had adequately informed the public, and the Appellate Court affirmed.
The Court agreed with the Attorney General that the Act requires two separate actions from a public entity – the posting of the agenda and a “public recital” of the nature of the action being taken. However, the “recital” didn’t mean that the public entity was required to explain to any members of the public who were present precisely what was being done and why. Rather, all that was needed is for the entity to disclose “the essence of the matter under consideration, its character, or its identity.” The public entity was free to voluntarily disclose in its “recital” the key terms of the agreement, but was not required to do so. The Court held that because the board president described “the general nature of the matter under consideration” and “specific detail sufficient to identify the particular transaction,” nothing more was required.
The Court then turned its attention to the issue of the February closed meeting. The Court noted that nothing in the statute barred taking a preliminary vote during a closed meeting. The fact that the members signed the agreement in the closed meeting was “immaterial,” since until there was a public vote, there by definition could be no final action.