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School Board Violated OMA by Failing to Offer an Opportunity for Public Comment in Open Session

The Illinois Attorney General’s Public Access Counselor (PAC) issued a binding opinion that a school board violated the Open Meetings Act (OMA) by failing to offer members of the public an opportunity to address the board in open session.  Instead, the board required community members to make comments in closed session because they wished to address a personnel matter.

The meeting at issue drew a crowd that was larger than normal due to the interest in the decision not to rehire a successful basketball coach. Prior to the meeting, the superintendent approached the 10 community members who submitted “Public Comment Forms” to speak at the meeting, to confirm that they intended to address the coach’s employment.  When the board president announced the agenda item for “recognition of the audience” the superintendent interjected and stated that the comments were most appropriate for closed session.  The board then moved into closed session and allowed the members of the public who signed up to speak to address the board. When the board returned to open session, no further opportunity was provided to members of the public to speak in open session. A reporter in attendance at the meeting filed a complaint about the actions of the Board.

The board argued that it did not violate OMA because it properly cited Section 2(c)(1) of OMA to enter closed session to discuss “[t]he appointment, employment, compensation, discipline, performance, or dismissal of specific employees.” The board also argued that discussing the coach’s employment in open session would be a violation of the coach’s rights.

On review, the PAC concluded that the board’s failure to offer an opportunity for public comment in open session violated OMA. Section 2.06(g) of OMA states that “[a]ny person shall be permitted an opportunity to address public officials under the rules established and recorded by the public body.” Although this provision was not explicit, the PAC determined that it requires public bodies to provide an opportunity for public comment during open session.  The PAC also rejected the board’s argument that the coach’s rights would be violated by discussing these matters in open session.

As we have previously reported, public comments about the performance of public employees is a matter of public concern protected by the First Amendment. As a result, public bodies cannot limit public comment simply because it addresses specific employees.  To avoid a public discussion of specific employees, public bodies may offer public commenters the opportunity to address the board in closed session.  As this case demonstrates, however, public commenters cannot be required to address the board in closed session, and even if a public commenter elects to address the board in closed session, public bodies also must offer the opportunity for members of the public to comment in open session.

Contact James Levi or any member of our Board Governance/Corporate Practice Group with questions about this PAC opinion.

Source: Public Access Op. 21-009