Nauvoo-Colusa school board violated OMA by locking building where agenda was posted

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Dear and Mr. Richart:

no agenda posted at the entry doors of the school. He further stated that when he complained to the District about the lack of a properly posted agenda in advance of the meeting, the District informed him that the agenda had been posted in the principal' s office on May 13, 2017. alleged that the agenda was not publicly accessible at that location because May 13th fell on a Saturday, and the building was locked. He also alleged that the agenda was not posted on the District' s website until the afternoon of May 15, 2017. In addition, alleged that not all members of the Board had completed the requisite OMA training. Further, he alleged, in pertinent part:

The Superintendent participates in the meeting as a member of the School Board, although he is not. He sits at the table with other members of the Board, and speaks privately with the School Board President in a low voice, not audible to the public. It is my contention that he should not be seated with the Board, and that all comments he makes should be during public comment portions of the meeting, or when specifically giving a report specified on the meeting agenda. 121 On June 1, 2017, this office forwarded a copy of the Request for Review to the Board and asked it to provide a written response to allegations. This office also asked the Board whether the District' s website was maintained by a full- time District staff member and asked for copies of the agenda and minutes. On June 16, 2017, this office received the requested materials. On June 19, 2017, this office forwarded a copy of the Board' s response to he replied on June 26, 2017. maintained that the agenda " was not posted 48 hours in advance in a publicly available location.i3 He also reiterated his claim that the Board President and superintendent improperly engaged in private conversations during the meeting. On August 10, 2017, this office asked the Board to provide a supplemental response clarifying each Board member' s start date and the dates on which each of the members had completed the OMA training. This office also requested copies of any certificates of completion. On August 22, 2017, the Board provided the requested supplemental response.

DETERMINATION

It is the " public policy of this State that its citizens shall be given advance notice of and the right to attend all meetings at which any business of a public body is discussed or acted upon in any way." 5 ILCS 120/ 1 ( West 2016). " The Open Meetings Act provides that May 24, 2017). 20MA — Request for review by Public Access Counselor ( PAC) submitted by public agencies exist to aid in the conduct of the people' s business, and that the intent of the Act is to assure that agency actions be taken openly and that their deliberations be conducted openly." Gosnell v. Hogan, 179111. App. 3d 161, 171 ( 5th Dist. 1989).

OMA Training As a preliminary matter, section 1. 05( b) of OMA ( 5 ILCS 120/ 1. 05( b) ( West 2016)) contains the requirements for members of public bodies to complete the electronic OMA training program developed by the Public Access Counselor. It provides, in pertinent part:

Except as otherwise provided in this Section, each elected or appointed member of a public body subject to this Act who becomes such a member after the effective date of this amendatory Act of the 97th General Assembly shall successfully complete the electronic training curriculum developed and administered by the Public Access Counselor. For these members, the training must be completed not later than the 90th day after the date the member:

1) takes the oath of office, if the member is required to completion with the public body is not required to subsequently complete the training required under this subsection ( b).

In addition, section 1. 05( c) of OMA ( 5 ILCS 120/ 1. 05( c) ( West 2016)) permits elected school board members to complete certain alternative training courses to satisfy the OMA training requirement:

An elected school board member may satisfy the training requirements of this Section by participating in a course of training sponsored or conducted by an organization created under Article 23 of the School Code. The course of training shall include, but not be limited to, instruction in:

1) the general background of the legal requirements for open meetings;

2) the applicability of this Act to public bodies;

previous trainings did not cover OMA certification, all Board members promptly took the training and became OMA-compliant. i5 The Board provided the start dates of each of the Board members and the dates on which they had completed the electronic OMA training curriculum. Additionally, the Board provided copies of the members' certificates of completion of the curriculum. This office has compared the start dates with the training completion dates and determined that five members had not completed the OMA training within 90 days of taking the oath of office or otherwise assuming responsibilities as a Board member. At this time, however, the OMA certificates of completion indicate that all members have completed the required OMA training. OMA provides no penalty for the failure to complete training within the statutory timeframe.

Posting of Agenda Section 2. 02( a) of OMA ( 5 ILCS 120/ 2. 02( a) ( West 2016)) provides, in pertinent building where the meeting was held. Addressing the accessibility of the posting, the Board asserted, in pertinent part:

correctly asserts that the agenda, despite being physically posted, wasn't publicly available during the full 48 hours prior to the meeting because it was inside a locked building. It is an interesting question whether the District complied with the requirements of Section 2. 02( c) in this instance, as Section 2. 02( c)

states, " The public body conducting a public meeting shall ensure that at least one copy of any requested notice or agenda for the meeting is continuously available for public review during the entire 48- hour period preceding the meeting." 5 ILCS 120/ 2. 02( c) emphasis added). In this case, no one requested the agenda until the morning of the meeting, at which time the agenda was promptly posted. 161 Additionally, according to the Board, a part- time consultant maintains the District' s website, so the Board has no duty to post agendas on the District' s website. The Board stated that the agenda was nonetheless posted on the District' s website on the date of the meeting in this instance. Under the plain language of section 2. 02( a), only public bodies that have a website maintained by a full- time staff member are required to post an agenda on their website 48 hours in advance of a meeting. This office has not received evidence contradicting the Board' s assertion that a part- time consultant maintains the District' s website. Accordingly, this office concludes that the Board was not required to post the May 15, 2017, meeting agenda on the District' s website 48 hours before the meeting.

The Board acknowledged, however, that the agenda was not continuously available during the 48 hours preceding the meeting because the building in which the agenda was posted was locked. While OMA does not specify where exactly at the location of a meeting an agenda must be posted, the public policy underlying OMA is to provide " advance notice of and the right to attend all meetings at which any business of a public body is discussed or acted plain language of section 2. 02( c), a public body may also satisfy the " continuously available" requirement by posting a copy of the notice and agenda on its website.

Although the Board asserted that the agenda was promptly posted once requested by in compliance with section 2. 02( c), which refers to " any requested notice or agenda" ( emphasis added), the meaning of the term " requested" is ambiguous in the context of the requirement that an agenda be posted at least 48 hours in advance of a meeting. However, the House debate on House Bill No. 4687, which added section 2. 02( c) to OMA as part of Public Act 97- 827, effective January 1, 2013, indicates that the General Assembly intended this provision to apply to all meetings for which 48 hours advance notice is required.' In discussing the bill, State Representative Sandy Pihos noted, in pertinent part: " House Bill 4687, what that does is it requires a full 48- hour posting for a public meeting, and that has mitigated some of the opposition." ( Emphasis added.) Remarks of Rep. Pihos, March 8, 2012, House Debate on House Bill No. 4687, at 69. Further, Representative Pihos confirmed the intent that a public body would not violate the " continuously available" requirement if it posted the notice and agenda on its website and the internes went down due to circumstances beyond the public body' s control. See Remarks of Rep. Pihos, March 8, 2012, House Debate on House Bill No. 4687, at 70.

The addition of section 2. 02( c) to OMA came less than three years after the court in In re Foxfeld Subdivision, 396 Ill. App. 3d 989, 993 ( 2d Dist. 2009) analyzed the claim that a village board violated OMA by posting the agenda for a meeting inside the village hall, which was only open for seven hours per day. The court favorably cited a decision in which the Texas Supreme Court held that although notice for a meeting " was not continuously available[,]" having " an ' open door' policy" would be cost prohibitive for many municipalities. See Foxfeld, 396111. App. 3d at 993 ( quoting City of San Antonio v. Fourth Court ofAppeals, 820 S. W. 2d 762, 768 ( Tex. 1991)). The court in Foxfield concluded: " Based on a plain reading of our Open Meetings Act, it is clear that the legislature does not require that an agenda be posted in a specific place so that it is publicly accessible for 48 continuous hours before the meeting." Foxfield, 396111. App. 3d at 994. Given the manner in which the phrases " continuously available" and " entire 48- hour period" in section 2. 02( c) of OMA mirror the phrases continuously available" and " 48 continuous hours" in Foxfield, it appears that the General Assembly intended the addition of section 2. 02( c) to correct Foxfreld' s conclusion on agenda accessibility. See, e.g., Collins v. Board of Trustees of Firemen' s Annuity & Benefit Fund of Chicago, 155 III. 2d 103, 111 ( 1993) (" An amendment that contradicts a recent interpretation of a statute is an indication that such interpretation was incorrect and that the amendment was enacted to clarify the legislature' s original intent.").

In contrast, the Board did not point to any authority for the claim that the continuously available" requirement was not triggered until requested the agenda for the meeting. Further, the Board did not support its claim that it complied with section 2.02( c) by posting the agenda on its website upon request. Because the public policy and legislative history behind section 2. 02( c) of OMA indicate that the General Assembly intended for the public to be able to view the agenda for an open meeting for a full 48 hours in advance of the meeting, this office concludes that the Board failed to provide sufficient advance notice of its May 15, 2017, meeting.

Nevertheless, the Board stated that it " will post its agendas on the windows of the entry doors * * * to ensure the public has continuous access to the agenda during the 48 hours prior to each meeting, whether or not such agenda is requested. i8 Although it is not required to post its meeting agendas on the District website 48 hours prior to its meetings, the Board also stated that it plans to do so. In light of these measures, this office has determined that no additional remedial action is required.

Superintendent' s Participation in Meetings Section 1. 2 of OMA ( 5 ILCS 120/ 1. 2 ( West 2016)) defines a " meeting" as any gathering, whether in person or by video or audio conference, telephone call, electronic means * or other means of contemporaneous interactive communication, of a majority of a quorum of the members of a public body held for the purpose of discussing public business[.]" Section 2. 06( g) of OMA ( 5 ILCS 120/ 2. 06( g) ( West 2016)) provides that "[ a] ny person shall be permitted an opportunity to address public officials under the rules established and recorded by the public body."

In this case, allegation that the school superintendent improperly engaged in private conversation with the Board president during the May 15, 2017, meeting does not set forth facts from which this office can conclude that the Board violated the requirements of OMA. 9 No provision of OMA prohibits a private conversation between a Board member and the superintendent or one- on- one communications involving less than a majority of a quorum of the Board. See Ill. Att'y Gen. PAC Req. Rev. Ltr. 30157, issued July 7, 2014, at 2 ( the allegation that Board members individually communicated with each other or with the Board' s attorney [ during an open meeting] does not set forth facts from which this office could conclude BLetter from Hodges, Loizzi, Eisenhammer, Rodick & Kohn, LLP, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Office of the Attorney General ( June 16, 2017), at 2.

9The Public Access Counselor' s authority to resolve disputes is limited to alleged violations of OMA and the Freedom of Information Act (5 ILCS 140/ 1 et seq. ( West 2016)). See 15 ILCS 20517( c)( 3) ( West 2016).

that a majority of a quorum of the Board engaged in private, contemporaneous, interactive communications" such that this office could conclude that an improper private meeting was held). Similarly, no provision of OMA requires that members of a school board be seated separately from the school superintendent. While contended that all comments made by the superintendent should be made during the public comment period of a meeting or when providing a report as listed on an agenda, OMA does not contain such a requirement. Section 2. 06( g) requires that members of the public be given an opportunity to address public officials during a meeting, but does not prohibit an individual from making private comments to a public official. Nonetheless, the Board president may wish to consider whether private discussions with the superintendent during open meetings contravene the spirit of OMA.

The Public Access Counselor has determined that resolution of this matter does not require the issuance of a binding opinion. This letter shall serve to close this matter. If you have any questions, please contact me at the Chicago address listed on the first page of this letter.

Very truly yours,