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In Public Access Opinion 20-004, the Illinois Attorney General’s Public Access Counselor found that a public body violated OMA when it impermissibly discussed the schedule and process for evaluating its principal in a closed session.

The South Loop Elementary School Local School Council held a meeting at which the School Council closed a portion of the meeting to discuss “the private details of the Principal Evaluation.” Shortly thereafter, a member of the School Council filed a Request for Review with the PAC, alleging that the discussion in closed session was improper.

The PAC found that the School Council violated OMA because the vast majority of the discussion involved the timing and process of the evaluation rather than discussion about the actual performance of the principal. OMA Section 2(c)(1) allows a public body to discuss the following in closed session: “The appointment, employment, compensation, discipline, performance or dismissal of specific employees….” The PAC reasoned that this exception to OMA refers to a discussion of the actual performance of specific employees and not, as in this case, determining the process by which evaluations are made and when those evaluations are conducted. Here, only three minutes of the approximately 36-minute discussion involved the individual performance of the principal; the rest pertained to the timing of the evaluation and the process by which to incorporate survey results for the evaluation. While a small portion of the discussion was appropriate for closed session, that portion did not enable the School Council to also hold a lengthy discussion of matters outside the scope of the exception to OMA.

While a court may have ruled differently than the PAC, this opinion is a reminder that there are limits to OMA closed session exceptions. Specifically, it clarifies that public bodies may discuss the actual performance and merits of a specific employee in closed session, but not the process by which employees would be evaluated. Discussions about the process or timing of employee evaluations must be held in an open session allowing for public comment. This issue also arises when a school board is conducting a superintendent search. Although the board may interview candidates and discuss the merits of the candidates in closed session, any discussion about the selection process itself or the criteria to be used to evaluate superintendent candidates must be conducted in public. Finally, this opinion also serves to remind school boards that closed session discussions cannot include lengthy discussions of topics that should be discussed in an open session, despite the fact that the discussion may also touch on topics that are subject to an exception.

Contact any attorney in our Corporate practice group with questions about OMA exceptions or the specific impact of this opinion.

Source: Public Access Opinion 20-004 (June 2, 2020)