Seventh Circuit Upholds Employee Due Process and First Amendment Claims Against Public Employer Based on Information From Closed Session Tapes 

In previous editions of the Extra Mile, we have followed the case of Kodish v. Oakbrook Terrace Fire Protection District, 604 F.3d 490 (7th Cir. 2010) (August 2006 Extra Mile).  Kodish involved the key question of whether an employee could use closed session audio tapes as evidence in the employee's lawsuit against the Board.  Now, the federal appellate court governing all Illinois school districts has allowed the case to proceed to trial based largely on information contained in the closed session tapes.

In 2006, the trial court ordered disclosure of closed session tapes containing a discussion about the plaintiff's performance, rejecting the district's assertion that the Illinois Open Meetings Act, 5 ILCS 120/1.01 et seq., prohibited disclosure.  Kodish v. Oakbrook Terrace Fire Protection Dist., 235 F.R.D. 447 (N.D. Ill. 2006).  The court found that the need for disclosure outweighed the importance of the policy asserted by the privilege, noting that the privilege should not bar disclosure of information necessary for legal inquiry.  The court also found that attorney-client privilege limited disclosure of some, but not all, portions of the minutes.  The district court, in 2008, granted defendant's motion for summary judgment on plaintiff's federal due process claim and dismissed the remaining state law claims.

The Seventh Circuit reversed, finding sufficient evidence to survive the summary judgment motion on the plaintiff's due process and First Amendment claims. It found that the plaintiff demonstrated that: (1) his speech was constitutionally protected, (2) but for the protected speech the employer would not have taken the same action, and (3) he suffered a deprivation via constructive discharge when he was told his health benefits would be terminated if he did not resign. The court's finding was based, in large part, on the statements made by the Chief during a closed meeting.

Access to and use of closed session tapes is a key issue for all school districts.   Contact Bob Kohn with questions concerning tapes of closed session meetings in light of Kodish.