by Michael B. Weinstein (Spring 2017)
In Board of Education of Springfield School District No. 186 v. The Attorney General of Illinois, 2017 IL 120343 (January 20, 2017), the Illinois Supreme Court unanimously concluded that while the Open Meetings Act requires that a public body make a “public recital prior to a public vote,” the recital need not provide an explanation of the terms of the transaction/issue or its significance. Rather, the recital need only provide sufficient detail to identify the particular transaction or issue under consideration. This decision is welcomed news to Illinois public bodies and a rare defeat for the Illinois Attorney General.
In this case, Springfield School District No. 186 was negotiating a separation agreement with the then-superintendent of schools, Dr. Walter Milton, Jr. Dr. Milton signed a proposed separation agreement at a closed meeting held on January 31, 2013. On February 4, 2013, the Board held another closed meeting where six of the seven Board members signed the agreement but did not date it. The Board’s attorney explained to the Board members that a public vote on the agreement would still be required.
Shortly thereafter, a local reporter filed a request for review with the Public Access Counselor (PAC). While this request for review was pending, the Board posted, on its website, the agenda for a public meeting to be held on March 5, 2013. The agenda included an action item entitled “Approval of a Resolution regarding the Separation Agreement and Release between Superintendent Dr. Walter Milton, Jr. and the Board of Education.” The item contained a link to the actual separation agreement, which contained the signatures of Dr. Milton and the six board members, as well as a recommendation by the Board President to approve the agreement.
At the March meeting, the Board President introduced the 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.” The President’s motion was seconded and a discussion ensued. One Board member moved that the matter be tabled; however, the motion died for lack of a second. That same member then spoke in favor of Dr. Milton. Another Board member thanked Dr. Milton for his service to the District. The matter was approved by a 6 to 1 vote, and the previously signed agreement was dated March 5, 2013.
Subsequently, the Attorney General issued a binding opinion, finding four violations of the Open Meetings Act. The school board sought administrative review of the Attorney General’s opinion, and the circuit court reversed. The circuit court concluded that final action on the separation agreement did not occur until the March 5, 2013 open meeting and, therefore, remanded the matter to the Attorney General for further proceedings.
Thereafter, the Attorney General issued a second binding opinion finding that the Board violated Section 2(e) of the Act “by voting to approve the separation agreement … without adequately informing the public of the business being conducted … because the Board’s posting of the separation agreement on its website did not constitute a public recital during an open meeting.” More specifically, the opinion held that the description of the matter by the Board President at the March open meeting was “vague” and failed to provide the public with the specific terms of the separation agreement; in particular, a “substantial lump sum payment of public funds.”
The opinion went on to conclude that the public body is required “to provide a verbal explanation of the significance of its action to members of the public who are present at the meeting before the public body can proceed to take action.” Furthermore, the public recital “must be verbal and must take place during the public meeting”, and the public body must ensure that, “the members of the public in attendance at the meeting receive sufficient ‘other information’ to understand the business being conducted.”
This second binding opinion was also appealed and, once again, the circuit court reversed. The Attorney General then appealed the circuit court ruling to the Fourth District Appellate Court. That court affirmed the trial court ruling that the undated, but signed agreement, did not violate the prohibition against taking final action at a closed meeting.
Eventually, the matter was appealed to the Illinois Supreme Court. The court first focused on whether Section 2(e) of the Open Meetings Act was ambiguous. If so, then the court would be required to give deference to the Attorney General’s interpretation of the statute — the agency administering and enforcing the Act. Specifically, Section 2(e) provides that, “[n]o 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 court analyzed the terms, “preceded by,” “recital,” “nature of the matter being considered,” and “other information that will inform the public of the business being conducted” before concluding that the Attorney General’s reading of the section was not supported by the text. The statute only requires that the public body “state the essence of the matter under consideration, its character, or its identity.”
Moving on, the court then reviewed the only two reported cases that had considered the meaning of Section 2(e) (Roller v. Board of Education of Glen Ellyn School District No. 41, 2006 WL 200886 (N.D. Ill. January 18, 2006) and Allen v. Clark County Park District Board of Commissioners, 2016 IL App (4th) 150963) and determined that, a public recital of “key terms” was not required. Finally, the court considered whether final action had taken place at a closed meeting and whether the recital at the open meeting was adequate.
Initially, the court noted that the Open Meetings Act “contains no bar to a public body’s taking a preliminary vote at a closed meeting.” The court reasoned that in order for final action to occur, there must be a public vote. In this case, final action did not occur at a closed meeting. Having already rejected the Attorney General’s assertion that the recital should have included “key terms,” the court decided that the recital was sufficiently detailed to meet the “public recital” requirement. It concluded that the Board President recited the general nature of the matter under consideration (i.e., a separation agreement and release) sufficient to “serve the purpose of the public recitation requirement.”
It is now clear that the “public recital” requirement in Section 2(e) of the Open Meetings Act does not require a detailed explanation of the final action being considered. A public body is only required to “state the essence of the matter under consideration, its character, or its identity,” although it may provide more detail at its discretion.