Section 2 of the Open Meetings Act states, "All meetings of public bodies shall be open to the public unless excepted in subsection c and closed in accordance with Section 120/2a." Exceptions in subsection c states that "A public body may hold closed meetings to consider..." all matters concerning school personnel. Since the superintendent wants to have a discussion as to whether the head of the science department will be appointed internally or the board will search externally for this candidate, I feel that he is within the Open Meetings statute to hold this meeting in executive session. It does not seem possible to me to hold a discussion about choosing a candidate internally without discussing whether there is a person already on staff who would be a good choice for this position, therefore, the Board would be assessing the performance of certain staff members. Discussions about personnel, in particular, personnel performance, is allow to be held in closed meetings by Section 120/2 of the Open Meetings Act.
The discussion about whether to make an internal appointment or conduct a broad search for the head of the science department could be held in a closed meeting, however, according to Section 2 of the Open Meetings Act the final decision and vote must be taken in an open meeting situation. Section 2 states, "No final action may be taken at a closed meeting."
Hypothetical #2:
While I do not feel the intent of the board member was to hold a meeting because they were at an athletic banquet and probably found themselves together by circumstance rather than plan, the fact that they discussed school board business could point to a violation of the Open Meetings Act. Section 1.02 of the Open Meetings Act defines a meeting as: "any gathering of a majority of a quorum of the members of a public body held for the purpose of discussing public business. The intent of this section was interrupted in the People ex rel. Difanis v. Barra case when the court ruled that a meeting need not be prearranged or have a quorum present for this Act to apply. This Act further states that while not every encounter between members of a public body is subject to the Act the situation in each case should be analyzed to decide whether a gathering is to be considered a "meeting."
Since 4 members represents a quorum of school boards in Illinois and the conversation dealt with items which would appear on the agenda for the upcoming school board meeting, in particular the schools of choice and school closing policy proposals, the board members could be in violation of Sections 1 and 2 of the Open Meetings Act. Section 2 of the Open Meetings Act states that all meetings of any ... school...board shall be public meetings. Section 1 of this Act stipulates that the deliberations of members of school boards be conducted openly. These sections were also further interrupted in People ex rel. Difanis v. Barr when the court ruled that even in a chance meeting where items which would be on the agenda of the upcoming official meeting were discussed that this was in violation of the Open Meetings Act. The public was not notified of the "meeting" which took place at the athletic banquet and therefore the board members should not have discussed the two agenda topics.
Would the discussions jeopardize the actions voted on by the Board on these two policy matters? First, the agenda items were only discussed, there was no vote taken or any decisions made about the two agenda items. The informal "meeting" of the board members would not necessarily jeopardize the action voted on by the Board, if the Board provides a public hearing to discuss the issues of schools of choice and school closing policy proposals and reaches its decisions on these matters at the public meeting. As ruled in the case, People ex rel. Hartigan v. Illinois Commerce Commission, "Even if allegations of a closed meeting stated a violation of this Act...by providing for a public hearing of the issues, the complaint became moot."
While three board members would not represent a quorum of the board, in the case, People ex rel. Difanis v. Barr, the trial court stated that the Act applies to meetings of three or more people, however, the Supreme Court of Illinois refused to make a decision "as to whether three persons automatically trigger application of the Act." It is my opinion that the gathering of three members instead of four would make the case in favor of violation of the Act weaker.
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.
As president of the local IEA I would recommend to the superintendent to caution the seven members of the school board about the use of email to communicate ideas about issues that would come before the Board. If the members of the board are using email to send information or opinions on an individual basis, clearly they are not in violation of the Open Meetings Act since this Act does not prohibit individual to individual communication. However, if there is serial communication among the members of the Board, or if the members reach an agreement about certain issues using serial communication, I feel they could be violating the spirit of the Open Meetings Act.
Since the use of serial communication is relatively new among members of public governing bodies there are no statutes within the Illinois Open Meetings Act which deals with this form of "meeting." However, in the state of Nevada (the Del Papa case), serial electronic communications have been challenged. In 1995 an addition to the Nevada Open Meeting Law, AB. 602, was brought before the legislature which read,"Electronic communication or polling, must not be used to circumvent the spirit or letter of this chapter (NRS 241) in order to discuss or act upon any matter. Although the legislature did not pass Ab 602, it is generally held that the legislature intended to prohibit public bodies from making decisions via serial electronic communications.
In short, if the email is used for informal, one-to-one exchanges of information there would be no intent to violate the Open Meetings Act. If the email is used in such a way that serial communication is taking place or actions and decisions are made they would be violating the spirit of the Open Meetings Act.