In a non-binding opinion, the Illinois Attorney General’s Public Access Counselor found that discussions between a park district employee and individual board members regarding a proposed agenda item did not violate the OMA because there was no evidence that three or more board members participated in contemporaneous, interactive communication about public business. Further, the PAC noted that a decision not to place an item on a meeting agenda is a procedural step, not a final action.
On August 23, 2020, the Lindenhurst Park District received a request from a community member to place a particular motion on an upcoming meeting agenda. He later received notice from the park district that it reviewed his request and decided not to place his motion on the agenda. The community member then submitted a Request for Review with the PAC, alleging that the board violated the OMA because it must have held an unscheduled meeting to discuss and decide on his request. The park district asserted that the executive director separately contacted four out of five board members about the community member’s request. Through those individual discussions, the executive director determined that the consensus of the board was not to add the motion to the upcoming agenda.
Under the OMA, if three or more of the board members engaged in contemporaneous, interactive, deliberate discussion of public business, then the communications would have constituted a “meeting” for purposes of the OMA (for a five member body, such as the park district, a meeting involves a quorum of the members, rather than a majority of a quorum). Here, the PAC determined that there was no evidence to suggest that three or more board members had contemporaneously discussed the request. Instead, the separate conversations between the executive director, an employee, and individual board members did not constitute a meeting under the OMA. The PAC distinguished the discussions here from a public body reaching a decision after a series of discussions between board members and then taking action to implement that decision. Further, the PAC noted that a decision not to place an item on an agenda is merely a procedural step, not a substantive one, and does not constitute a “final action.”
This opinion affirms that employees of a public body, such as superintendents, may contact board members individually to determine the board’s consensus on procedural items without fulfilling all procedural steps of a meeting for purposes of the OMA. School districts should be careful, however, not to arrive at a final decision through a series of discussions between board members outside of an open meeting. This opinion is also a reminder that a board has no obligation to include items requested by community members on its meeting agendas.
Contact Steve Richart, Kerry Pipal, or any attorney in our Board Governance/Corporate practice group with your OMA questions.