United States: Illinois Open Meetings Act: No Closed Session Can Discuss Employees As A Class

Mark Edward Burkland is a Senior Counsel in Holland & Knight's Chicago office.

Megan R Cawley is a Attorney in Holland & Knight's Chicago office.

HIGHLIGHTS:

  • The Illinois Attorney General (the AG) has concluded in a binding opinion that Western Illinois University's Board of Trustees (WIU Board) violated the Illinois Open Meetings Act (OMA) by improperly discussing budget issues and layoffs in closed session.
  • The WIU Board met in closed session in June 2018 to discuss personnel salaries and layoffs. Soon after, the president of the Western Illinois University Chapter of the University Professionals of Illinois filed a complaint with the AG, alleging that the Board violated the OMA by discussing classes of employees instead of specific employees.
  • The AG determined that the WIU Board violated the OMA by discussing budget issues and personnel matters generally, but not significantly, about specific employees as required by the OMA.

Illinois Attorney General Lisa Madigan (the AG) concluded in binding opinion No. 18-012, issued on Oct. 2, 2018, that Western Illinois University's Board of Trustees (WIU Board) violated the Illinois Open Meetings Act (OMA) by improperly discussing budget issues and layoffs in closed session. The AG relied largely on the verbatim recording of the closed session in reaching its conclusion.

Background

The WIU Board met in closed session on June 28, 2018, to discuss personnel salaries and layoffs. Soon after, the president of the Western Illinois University Chapter of the University Professionals of Illinois (the Union) filed a complaint with the AG, alleging that the Board violated the OMA by discussing classes of employees instead of specific employees.

In its challenge, the Union gave the AG a list of employees who had been laid off and stated that the WIU Board "had discussed and decided to reduce the salaries of all librarians who have a contract (greater than) 9 months." The Union later gave the AG, in reply to the Board's response, a list of all employees who were laid off or had their salaries reduced.

The WIU Board stated that, during its closed session, specific employees were discussed and thus there was no violation. The AG asked the Board for documents related to the closed session, including the meetings of the June 28 meeting and the verbatim recording of the closed session. The Board supplied the requested materials.

The June 28 meeting agenda included this statement: "The Board shall convene in closed session for the purpose of considering matters provided for in 5 ILCS 120/2c, including personnel, collective bargaining, litigation and real estate." The draft minutes of the June 28 meeting, however, did not include a citation to a specific exception from section 2(c) of the OMA and did not even refer to the closed session.

The AG's Findings

The AG determined that the WIU Board violated the OMA by discussing budget issues and personnel matters generally, but not significantly, about specific employees as required by the OMA.

The AG wrote that the plain meaning of the OMA section 2(c)(1) authorizes closed session discussion of employment matters "only in the context of specific employees of the public body." (Opinion at 4; emphasis added.) The AG noted that in a prior opinion the AG reached the conclusion that "the General Assembly did not intend to permit public bodies to hold general discussion concerning categories of employees in closed session pursuant to section 2(c)(1)." (Ill. Att'y Gen. Pub. Acc. Op. No. 16-013, issued Dec. 23, 2016, at 4.) Another prior opinion stated: "To the extent that a public body is required to discuss the relative merits of individual employees as a result of its fiscal decision, such discussion may properly be closed to the public under section 2(c)(1) of OMA. The underlying budgetary discussion leading to those decisions, however may not be closed to the public." (Ill. Att'y Gen. Pub. Acc. Op. No. 12-011, issued July 11, 2012, at 3.)

The AG emphasized that section 2(c)(1) is intended to protect the identity of prospective appointees or employees, and the reputation of public employees. Under that premise, "the elimination of a job or position-even one held by only a single employee-for budgetary or other reason unrelated to the performance of the employee is a matter relating to budget and management which does not carry implications for an individual employee's reputation ... is not within the scope of the section 2(c)(1) exception." (Ill. Att'y Gen. Pub. Acc. Op. No. 15-007, issued Sept. 16, 2015, at 5.)

The verbatim record of the closed session sealed the AG's determination. The AG wrote that the verbatim recording of the closed session shows the Board briefly discussed only one employee and the "overwhelming majority of the closed session discussion" concerned budgetary matters and categories of employees. This, the AG wrote, violated section 2(c)( 1) of OMA, which permits closed session discussion only about specific employees of a public body.

The AG included in its findings that "the Board primarily discussed budgeting and layoffs, rather than the performance or conduct of any specific employees ... ." We assume that the AG does not think every section 2(c)(1) closed session must relate to performance, and we assume the phrase "performance or conduct" encompasses the full range of topics stated in section 2(c)(1).

Practical Implications

The AG has ruled numerous times on the validity of public bodies' claims that they properly considered matters in closed session and stayed on task in a closed session rather than strayed into wrongful discussions. Too often, it seems, those claims are not accurate.

The verbatim recording in this case proved that the WIU Board's assertions were, at a minimum, incorrect, catching the Board in the act of overstepping OMA limitations.

It clearly matters that a public body planning to convene in closed session pass a motion that states specifically the purposes of the closed session and, to be sure of accuracy, also cites the section or sections of the OMA that support the closed session. It would help, too, for the public body to prepare minutes of that meeting promptly and include the motion that was made for the closed session.

Finally, public bodies in Illinois must ensure that they hew to all OMA closed-session standards.

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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