Hypothetical 1.
The department head of the science department of Adams High School in XYZ Illinois public school district resigned effective at the end of the 2000 academic year. The superintendent would like to discuss with the board whether to make an internal appointment of someone in the science department or open a broad search that would involve external candidates. Can the superintendent take this matter to the board in executive session (closed meeting)? Explain your rationale and be explicit about factual assumptions central to your analysis.
RESPONSE:
First of all, this situation states that the superintendent wants to discuss whether to hire within system or conduct a broad search which involves external candidates. Although this decision alone narrows the potential range of candidates, it is part of the process of appointing an employee of the public body to a position. I am assuming that the power to appoint such a person is held by the board, therefore all the decisions leading up to and including the appointment may be made during a closed meeting.
How then would the course of this meeting proceed? I envision that this meeting would contain more discourse than simply deciding whether or not to consider external candidates. Discussion leading to this decision may include character analysis and potential of internal candidates in order to make the decision if an external search should be conducted as well.
OPEN MEETINGS ACT 120/2 (c)Exceptions. A public body may hold closed meetings to consider the following subjects:
(1) "The appointment, employment, .....of specific employees of the public body, including hearing and testimony on a complaint lodged against an employee to determine its validity"
(3) "The selection of a person to fill a public office, as defined in this Act, including a vacancy in a public office, when the public body is given power to appoint under law or ordinance..."
(d) Definitions.
"Employee" means a person employed by a public body whose relationship with the public body constitutes an employer-employee relationship under the usual common law rules, and who is not an independent contractor."
The head of the science department would be such an employee with this relationship to the board.
ANSWER:
Yes, the superintendent may consider this matter in executive session. However, the "final action" of actually appointing this person must take place in an open session.
Hypothetical 2.
Four board members happen to be in attendance at an athletic banquet at Jones middle school in ABC Illinois public school district. The board members are seated at the same table and it is reported by several other people at the same table that some of the conversation at the banquet dealt with topics that were on the agenda for the upcoming school board meeting. There was a particularly heated discussion on the schools of choice and school closing policy proposals on the agenda. Did these discussions violate the Open Meeting Statute and thereby possibly jeopardize the actions voted on by the Board on these two policy matters? Would it make any difference in your analysis if three board members were at the table instead of four? Explain your rationale and be explicit about factual assumptions central to your analysis
RESPONSE:
The definition of a "meeting" according to Open Meetings Act section 120/1.02 is "any gathering of a majority of a quorum of the members of a public body held for the purpose of discussing public business" Although this was an informal gathering, in that it took place during an athletic banquet, it became a "meeting" as defined by this Act when public business became the topic of conversation.
From People ex rel. Difanis v. Barr, it is stated that, "A meeting need not be prearranged, occur at an official meeting place, or have a quorum present for this Act to apply; therefore the circumstances in each case must be analyzed to decide whether a gathering is a meeting within the scope of the Act."
From Gosnell v. Hogan, it is stated, "The overriding purpose of this Act, within which the promotion of openness is subsumed and made a constituent part, is to aid the conduct of the people's business."
From People ex rel. Hartigan v. Illinois Commerce Commission, "The express purpose of this Act is to require public bodies to conduct their deliberations and actions openly."
I think that support for and against this situation being considered a "meeting" relies heavily upon the purpose of the Act. My personal interpretation of this Act is that it serves to prevent secretive meetings of public committees to promulgate their own interests. I believe that, although topics of the upcoming meeting were discussed, this should not be considered a "meeting" that would violate the Open Meetings Act. The situation states that only some of the conversation included a "heated discussion" about these topics and that the conversation was overheard by several people. I believe, although I think it lacks proper conduct at an athletic banquet, that this discussion does not circumvent the spirit of the Open Meetings Act. I do not believe that their conversation necessarily excluded any other person at this event from joining in and, by doing so, exercising their freedom of speech.
I am assuming that there are seven board members, so the issue of three or four being present is a mathematical question of majority. If four members were present, this constitutes a majority of the members. If only three were present it is not the majority of members, yet it is a majority of a quorum. In the Open Meetings Act, the presence of three people defines a meeting, so either way, this would qualify as a meeting under this Act, from a numerical perspective. Since I have already stated that I don't believe that they violated this Act, this point moot.
OPEN MEETINGS ACT 120/1
In reference to the "FREEDOM OF SPEECH" section, which refers to People ex rel. Difanis v. Barr
This act does not prohibit the
expression of any idea or make assembly illegal, but only
requires public bodies to meet and deliberate public business
openly rather than behind closed doors; therefore, freedom of
speech principles, which protect the expression of ideas and not
the right to conduct public business in closed meetings, are not
violated by this Act.
ANSWER:
No, I don't think that these discussions violate the Open Meeting Statute. Since I do not believe that this can be perceived as a "meeting" then the issue of the number of people present is of no consequence.
Hypothetical 3.
All seven school board members have home computers and actively use email. It has come to your attention that the board members actively used email communications prior to a substantive vote on a district policy regarding professional development requirements for teachers. As president of the local IEA what recommendations, if any, do you have for the superintendent regarding the use of email by board members in formulating district policy? Explain your rationale and be explicit about factual assumptions central to your analysis. (You may want to review the 1998 Del Papa case on this matter.)
RESPONSE:
First of all, the fact that all seven board members have and actively used e-mail communications prior to a vote on a district policy does not necessarily mean that they used this medium to discuss this vote. From where does this information come? Who is monitoring their e-mail use? I think this may fall into another category of prosecution in and of itself.
I will therefore assume for the sake of this hypothetical situation that it is known that the seven board members used e-mail communications specifically to discuss the issues on the mentioned district policy on which they will vote.
As President of the local IEA, I may provide the superintendent with some information about how electronic communication has been viewed in light of the Open Meetings Act in past situations and how it may affect future meetings.
In the Del Papa v. Regents case, it was held that the use of electronic communication to deliberate toward a decision on any matter over which the public body has advisory power violates the Open Meetings Act. Obviously in this case, a quorum was involved in deliberating the issues via e-mail. Since e-mail is an asynchronous activity, even if this isn't viewed as a "meeting" it circumvents the spirit of the Open Meetings Act. The legislature adopted the current version of NRS 241.030, which prohibits the use of electronic communication to circumvent the spirit of chapter 241.
I would strongly urge the superintendent to advise the board members to refrain from discussing any business at any other time except during official board meetings. If board members think of issues they would like to discuss when they are not at a board meeting, they must wait to discuss these issues until the next meeting.