PAC Reminds Public Bodies of Limits on Closed Session Discussions on Employee Performance

In its fourth binding opinion of 2020, the Illinois Public Access Counselor found that a Chicago Public School’s Local School Council violated Section 2(a) of the Open Meetings Act by improperly discussing the timing and process used to evaluate the school’s principal in closed session, even where the LSC also discussed the merits of the evaluation in closed session. Because discussions of the process to be used in evaluations can prematurely signal to the public that there are concerns with an administrator or other employee’s performance, this can complicate discussing legitimate concerns in closed session. The PAC opinion does not appear to foreclose discussion of the evaluation process when woven tightly together with discussion of substantive evaluation issues. When discussion of procedural matters is distinct from discussion of the employee’s performance, however, public bodies should reconvene to discuss those matters during open session.

In Public Access Opinion 20-004, the PAC addressed the question of whether it was appropriate for an LSC to discuss in closed session the timing of the evaluation process for the principal of the local public school as well as whether to adopt a suggested evaluation approach of dropping the highest and lowest scores before coming up with an average score. The LSC discussed some matters relating to the principal’s performance and evaluation metrics during the closed session, but “the bulk” of the conversation focused on the timing of the evaluation process and the evaluation approach to use in evaluating the principal. The LSC defended its actions based on the provision of the OMA, which permits a public body to discuss in closed session the “performance” of “specific employees.”

The PAC found that the LSC violated the OMA. Section 2(c)(1) does not authorize the discussion of the evaluation process, so the council’s discussions about evaluating the principal rather than the principal’s performance violated section 2(a) of OMA by improperly closing that discussion to the public. Because the bulk of the LSC’s discussion did not concern the merits, conduct, or other issues related to the performance of the current principal, but instead concerned the LSC’s process for evaluating the principal and considering her reappointment, the Council improperly held the discussion in closed session. The mere possibility that an open session discussion may touch on issues that a public body is authorized to discuss in closed session does not permit a public body to hold a lengthy closed session discussion on matters outside the scope of the exceptions to the general requirement that public bodies conduct public business openly. This was true even though the LSC did not actually adopt the proposed timing and process changes it discussed during closed session. According to the PAC, there is a significant public interest in a public body’s discussion of the process for evaluating a high-ranking school administrator such as a principal, regardless of whether those deliberations result in a change in policy. Consequently, the PAC ordered the council to release that portion of the meeting recording that was not properly within the scope of the closed session exemption.

This opinion serves as a reminder that public bodies must limit the scope of their discussions in closed session to only those topics that are permissible under the OMA exemptions. To the extent discussions evolve into impermissible topics (such as timing and process for the school principal’s evaluation), the public body must reconvene in open session to have that discussion. Closed session discussion of the evaluation process may be permissible when closely tied to the substance of the evaluation or a potential employment action like dismissal, non-renewal, or discipline. In those circumstances, contact legal counsel to help structure the closed session discussion. For more detailed questions, please contact the authors of this post or any other Franczek attorney.