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PAC Reminder to Boards: Straying from Exempt Matters in Closed Session Violates OMA

Higher Education K-12 Education

Boards try their best to avoid it, but you hear about it time and again—aboard goes into closed session and the conversation turns away from the subject matter the board identified in open session as the reason for the closed session. The Illinois Open Meetings Act (OMA) does not contain a general deliberative process exemption to allow public bodies to discuss even sensitive matters in closed session if they are outside of the specific reach of a particular exemption. A recent Illinois Attorney General Public Access Counselor (PAC) binding opinion provides a reminder that boards that stray too far from the OMA exemptions may find themselves in violation of the law.

The case arose after a union official challenged a June 28, 2018, closed session meeting of the Board of Trustees (Board) of Western Illinois University (University). The Union President had some intel regarding what the Board discussed at the closed meeting; he informed the PAC that the Board had discussed its budget, layoffs, and issues applicable to whole classes of employees, including salary reductions. The University defended its actions, noting that it had discussed specific employees during the closed session.

The OMA allows a public body to consider in closed session “[t]he appointment, employment, compensation, discipline, performance, or dismissal of specific employees of the public body . . . , including hearing testimony on a complaint lodged against an employee of the public body . . . to determine its validity.” 5 ILCS 120/2(c)(1) (emphasis added). But Section 2(c)(1) doesn’t allow a board to stray from that topic, and that’s what the PAC found to have happened here. The PAC found that Section 2(c)(1) did not apply to the Board’s closed session meeting because the “overwhelming majority” of the closed-session discussion related to “budgetary matters and considerations applicable to categories of employees” and the Board only briefly discussed a matter related to a specific employee.

The takeaway? It’s not enough to have a valid reason to go into closed session. A board must also control the conversation to avoid a discussion of a topic not proper for a closed session. This may sound easy enough, but this recent PAC opinion isn’t the first time that a public body has found itself in hot water for its board’s misuse of Section 2(c)(1) of the OMA. (We reported on a 2015 binding opinion.) Some practical tips for avoiding this type of pitfall in your own meetings: (1) have the Board President, Superintendent, or other members take the responsibility for steering the meeting; (2) prior to a meeting, utilize your board attorney as a resource if uncertain as to whether a topic may be discussed in closed session or how best to properly discuss a topic in closed session.