United States: Illinois Appellate Court Reverses Attorney General Binding Opinions On Open Meetings Issues

Mark E. Burkland is Senior Counsel and Peter M. Friedman is a Partner in our in our Chicago office.

HIGHLIGHTS:

  • The Illinois Appellate Court has upheld a trial court's reversal of two Illinois Attorney General binding opinions related to the Illinois Open Meetings Act (OMA).
  • An important impact of the appellate court's decision in Board of Education of Springfield School District No. 186 v. Attorney General of Illinois et al is its clarification that the courts will not afford substantial weight and deference to the attorney general's interpretations of unambiguous provisions of the OMA.
  • The appellate court's decision is a firm reminder that the attorney general may not expand the requirements of the OMA through its administrative rulings.

In Board of Education of Springfield School District No. 186 v. Attorney General of Illinois et al., 2015 IL App (4th) 140941, the Illinois Appellate Court upheld a trial court's reversal of two Illinois Attorney General binding opinions related to the Illinois Open Meetings Act (OMA). In its Dec. 15, 2015, decision, the appellate court first ruled that signatures on an employee separation agreement made during a closed session was not "final action" in violation of the OMA when the public body thereafter publicly discussed and voted on the agreement in open session during a regular meeting.

The appellate court then ruled that the public body did not fail to properly notice or inform the public about the separation agreement at the public meeting, because the school board posted the agreement on its website four days before approval, listed the agreement clearly on the meeting agenda and discussed the agreement before any vote was taken.

In the long run, the most important impact of the appellate court's decision may be its clarification that the courts will not afford substantial weight and deference to the attorney general's interpretations of unambiguous provisions of the OMA. The appellate court's decision, parts of which are critical of the attorney general's positions, is a firm reminder that the attorney general may not expand the requirements of the OMA through its administrative rulings.

Background

The binding opinions by the Illinois Attorney General related to actions on a single matter taken by the Board of Education of Springfield School District 186. In a Feb. 4, 2013 closed session, the school board discussed a separation agreement for its superintendent, who already knew he was being fired. Six of the seven school board members signed the agreement while in closed session, though none of them dated their signatures.

The school district on March 1 published the agenda for its March 5 meeting on its website. The agenda included a line item for "Approval of a Resolution" regarding the separation agreement, naming the superintendent. The agenda also included a link to the website page on which the school board had posted the full agreement. At its March 5 meeting, the school board voted to approve the agreement and then added the March 5 date to the signatures already on the agreement.

Attorney General's First Binding Opinion

In response to a request for review from a local newspaper, the attorney general in May 2013 issued a binding opinion that the signing of the separation agreement in the Feb. 4 closed session was final action on the agreement in violation of Section 2(e) of the OMA. Section 2(e) forbids final action in a closed session:

Sec. 2. Open meetings.

*    *    *

(e) Final action. 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.

In its opinion, the attorney general also stated that even if the school board could properly act on the separation agreement at its March 4 meeting, the school board failed to adequately inform the public about the agreement.

The school board appealed the attorney general's decision to the Illinois Circuit Court, which in November 2013 reversed the attorney general's ruling on the "final action" issue, but remanded the "adequately informed" issue so that the school board could respond.

Attorney General's Second Binding Opinion

In April 2014, the attorney general issued its second binding opinion on the "adequately informed" issue, finding that posting the separation agreement in its entirety on the school board's website four days before the March 4, 2013 meeting "did not constitute a public recital during an open meeting within the scope of section 2(e) ... ."

The case went back to the circuit court, which reversed the attorney general again. The circuit court found that the attorney general's opinion "significantly expands" the requirement under Section 2(e) and the attorney general had offered no authority that supported such an expansion.

Appellate Court Decision

The appellate court considered first the standard of review to apply to the appeal. The attorney general urged the court to give substantial weight and deference to her interpretations because of the attorney general's role in administering and enforcing the OMA. The court noted, however, that such deference applies only to interpretations of ambiguous statutes, and not to the attorney general's interpretation of the plain, unambiguous language of Section 2(e). The court stated that review of the attorney general's opinions was de novo, and thus not deferential.

The appellate court then rejected the attorney general's legal analysis on the "final action" issue, finding that no Illinois court has previously invalidated an action in closed session like the school board's when a public discussion and vote was taken subsequently.

In this case, the appellate court explained that the school board clearly took final action in open session at its March 4, 2013 meeting. The action in closed session on Feb. 4 was not final action, the court wrote, because the OMA states that actions in closed session cannot be final actions. Though this reasoning may seem a bit circular, common sense leads to the conclusion that the school board took final action on the separation agreement at its March 4 meeting because it understood it could not do so during the Feb. 4 closed session. Further, there was no evidence in the record that either the school board or the separating superintendent took any action consistent with the attorney general's conclusion that the deal was completed at the Feb. 4 closed session.

The appellate court noted that earlier court rulings establish that no public body can take final action merely by circulating a document for signature and not voting on it publicly. See Howe v. Retirement Board of the Firemen's Annuity & Benefit Fund, 2013 Il App (1st) 122446. Further, under similar circumstances the Illinois Supreme Court rejected the notion that preparing and signing a document in closed session violates the OMA when the public body subsequently acts in open session. See Grissom v. Board of Education of Buckley-Loda Community School District No. 8, 75 Ill. 2d 314 (1979).

The appellate court also rejected the attorney general's position that the school board was required to take actions to inform the public in addition to publishing the separation agreement on its website, listing it on its meeting agenda and introducing it at its meeting. The court found that these actions satisfy the standard set in Section 2(e) of the OMA.

The appellate court criticized the attorney general for her assertion that the public was "ill informed" about the agreement because "they were not given details." The court noted that the attorney general "does not support her claim with competent authority or elaborate further as to what additional information the Board could have provided the public that would have constituted sufficient notice under her interpretation of section 2(e)." The court also rejected the attorney general's request that it consider extrinsic evidence of the intent of the legislator who sponsored the amendment to Section 2(e) in 1989 that set the "adequately informed" standard.

Summary

The decision in Board of Education of Springfield School District No. 186 v. Attorney General of Illinois confirms that public bodies that abide by the statutory requirements in the Illinois Open Meetings Act will not also be held to ad hoc administrative determinations.  

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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