United States: Illinois Attorney General Limits "Personnel" Exception Under Open Meetings Act

Last Updated: September 10 2015
Article by Peter M. Friedman

Peter M. Friedman is a Partner in our Chicago office.

HIGHLIGHTS:

  • Illinois Attorney General Lisa Madigan has issued a binding opinion concerning action taken by the Corporate Authorities of the Village of Blue Mound, interpreting one of the most frequently used exceptions authorizing closed sessions under the Illinois OMA.
  • The exception is Section 2(c)(1) of the OMA. This is often referred to as the "personnel" exception, but by statute it applies only when the discussion relates to "specific employees" of the public body.

In Public Access Opinion 15-005, issued on Aug. 4, 2015, the Village Board of the Village of Blue Mound was accused of violating the Illinois Open Meetings Act (OMA) for going into closed session to consider a contract with Macon County for police services, including the scope and cost of that contract. The Attorney General found that the Village Board improperly relied on the Section 2(c)(1) exception and its closed session discussion violated the OMA.

The Attorney General made the following specific conclusions:

  • Reiterating the express policy of the OMA, all closed session exceptions are to be "strictly construed, extending to subjects clearly within their scope," and the use of the phrase "specific employees" significantly limits the scope of Section 2(c)(1). It is inappropriate to use the term "personnel" as a reference to the Section 2(c)(1) exception.
  • Section 2(c)(1) does not provide a board exception to discuss matters that "might impact personnel."
  • Section 2(c)(1) authorizes only closed session discussion of the appointment, employment, compensation, discipline, performance, or dismissal of "specific employees of the public body." [Emphasis added] While the contract with Macon County would result in disbanding the Village police department, there was no discussion of the performance of specific employees.
  • The exception is intended to allow discussion related only to the "relative merits of individual employees, or the conduct of individual employees."
  • The exception does not authorize the discussion of the underlying budgetary issues (such as whether to eliminate certain discretionary programs, reduce departmental funding, find alternative funding sources for existing employee or department services, or consolidate or eliminate departments altogether) even though the resolution of those issues may impact specific employees.  
  • In this context, Section 2(c)(1) can properly be used only when the public body must discuss the relative merits of specific employees as a result of its fiscal decisions.

See also, Ill. Att'y Gen. Pub. Acc. Op. No. 12-011.

By interpreting Section 2(c)(1) as applying only to specific public body employees (and attorneys for the public body), the Opinion confirms that discussion of independent contractors in closed session is not authorized under Section 2(c)(1).  

In light of the Attorney General Opinion, all Illinois public bodies must strictly construe the Section 2(c)(1) exception to ensure compliance with the OMA. A properly structured and limited closed session discussion of the appointment, employment, compensation, discipline, performance, or dismissal of specific employees, as those actions relate to budgetary, organizational, or contractual issues, remains within the scope of Section 2(c)(1). In each instance, however, public bodies must determine whether discussion of these issues can be properly separated or otherwise structured to ensure a lawful closed session discussion.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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