Board Violates OMA by Discussing Items Tangentially Related to Closed Session Exceptions While in Closed Session

The Illinois Attorney General recently found that public bodies violated the Illinois Open Meetings Act when they misused two exceptions:  the employment related topics and the purchase or lease of real property exceptions.

According to the Attorney General, it is a violation to discuss in closed session the underlying budgetary considerations leading to employment decisions. While Section 2(c)(1) of OMA allows for discussion of employment related topics such as the performance, discipline, and dismissal of an employee, and to discuss the financial considerations which may lead to the dismissal of employees, the discussion of budgetary concerns and how they are tangentially related to employment concerns is not enough to allow those discussions to take place in closed session.

The Attorney General also found that Section 2(c)(5) does not permit a board to discuss the sale of property in closed session. The exception in Section 2(c)(5), which allows for closed meetings to discuss the purchase or lease of real property for the use of a public body, may not be used to discuss which property a public body will sell or lease. Pursuant to the amendments made to OMA that became effective on January 1, 2015, a board may only discuss “setting of a price for sale or lease of property owned by the public body” in closed session. The discussion of whether the board should sell a property or what property could be sold must take place in open session.

The Board of Education of Waubonsee Community College held a public meeting and entered into closed session pursuant to Section 2(c)(1) and Section 2(c)(5). The closed meeting was purportedly to discuss employment concerns and property sales. A reporter looked into the window of the closed meeting and saw PowerPoint slides detailing the board’s budget and budget concerns. The slides included descriptions of financial uncertainties, financial stewardship, five–year forecasts of various funds, and projections for tuition rates. The reporter subsequently filed an OMA claim against the board.

The Attorney General sided with the reporter finding the exceptions to enter into closed session “are to be strictly construed, extending only to subjects clearly within their scope.” This decision clearly limits the discussion of periphery items to certain closed meeting session exceptions. Topics that are typically required to be discussed in open session must still be discussed in open session regardless of their indirect relationship to other excepted matters.

Boards should be cautious about overly broad discussions in closed session. The Attorney General clearly indicates in this opinion that OMA should be strictly construed and off topic discussion not directly covered by the exceptions within the Act will be considered violations.

Please contact Bob Kohn or Heather Brickman with questions about this opinion or other OMA issues.

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