Bilingual Parent Advisory Committee not a public body under OMA

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Dear Mr. Silver and Dr. Hernandez:

• .: This determination is issued pursuant to section 3 .5( e) of th·e ·open M®etings Act (OMA)(5 ILCS 120/3.S(e)(West 2018)).1 • • I On June 20, 2017, Mr. Benjamin Silver, on behalf of the Citizen Advocacy Center, submitted a Request for Review to the Public Access Bureau alleging possible violations of OMA by the Bilingual Parent Advisory Committee (Committee) of Cicero School District 99 (School District). Specifically, he alleged that the Committee is an advisory body of the School District, and that the Committee failed to provide an 9pportunity for public comment at it¯ April 21, 2017, and May 12, 2017, meetings in violation of section 2.06(g) of OMA (5 ILCS 120/2.06(g) (West 2016)).

On July 3, 2017, this office forwarded a copy of Mr. Silver's Request for Review to the School District and asked it to respond in writing to Mr. Silver's allegations. In particular, this office asked the School District to explain whether any members of the public attempted to provide public comment at the meetings in question and whether the Committee permitted those individuals to address the Committee during its meetings. If the School District did not 6onsider • I the Committee to be a "public body" as defined in section 1.02 of OMA (5 ILCS 120/1.0 12 (West 2016)), this office asked it to explain in detail the Committee's purpose and duties, as well as its relationship to the School District. Additionally, 'this office asked the School District to provide copies of any recordings, written minutes, and other written documentation, if any, of the Committee's April 21, 2017, and May 12, 2017, meetings. On July 31, 2017, this office eceived the requested materials. On August 1, 2017, this office forwarded a copy of the School r;>istrict's written response to Mr. Silver; he replied on August 10, 2017.

DETERMINATION

"In order that the people shall be informed, the General Assembly finds and declares that it is the intent of [OMA] to ensure that the actions of public bodies be taken. 1openly and that'their deliberations be conducted openly." 5 ILCS 120/1 (West 2016).

l. Section 1.02 of OMA defines a "public body" as:

[A]ll l<,:::gislative, executive, administrative or advisory bodies of . 1 the State, counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees or commissions of this State, and any subsidiary bodies of any of the foregoing including but not limited to committees and subcommittees which are supported in whole or in part by tax revenue, or which expend tax revenue, except the General Assembly and committees or commissions thereof.

. I An "advisory body," for purposes of OMA, is an entity that has defined responsibilities and is a . I formal part of the structure of the public body that it advises. Board of Regents of Regency University System V. Reynard, 292 Ill. App. 3d 968, 977-78 (4th Dist. 1997). In contrast, OMA "is not .intended to open to the public the deliberations of merely informal advisory comm\ttees who discuss internal" affairs of a public body. Pope v. Parkinson, 48 Ill. App. 3d 797, 800 ( 4th Dist. 1977). Factors to consider in determining whether a group constitutes an advisory b9dy under OMA include:

who appoints the members of the entity, the formality of their appointment, and whether they are paid for their tenure; the entity's assigned duties, including duties reflected in the entity's bylaws or authorizing statute; whether its role is solely advisory or whether it • also has a deliberative or investigative function; whether the entity is subject to government control or otherwise accountable to any public body; whether the group has a budget; its place within the larger organization or institution of which it is a part; and the impact of decisions or recommendations that the group makes. University Professionals of Illinois v. Stukel, 344 Ill. App. 3d 856, .1 865 (1st Dist. 2003).

In Stukel, the plaintiff alleged that a group of presidents and chancellors o 1f public universities (Council), which made recommendations to the Illinois Board of Higher Edtication (IBHE), violated OMA by meeting privately before IBHE meetings to discuss issues related to funding for public education. Stukel, 344 Ill. App. 3d at 857-58. The court held that the 1Couni:il was not an advisory body of IBHE in part because it was not incorporated into the formaf organizational structure of IBHE, a factor that the court identified as a "primary consideration in determining whether an organization is a public body under the Meetings Act." Stukel, 3'44 Ill. App. 3d at 865. The court explained that "the Council was formed by the presidents and 1 chancellors of the various state universities to express its views to the IBHE. Granted, it• role is advisory hut that role is one that the Council [ and not IBHE] created." Stukel, 344 Ill. App. 3d at 866. The court also noted that the plaintiffs complaint did not allege that the group had a "deliberative or investigative function in relation to the IBHE or that the Council is subject to government control. It'does not appear that the Council is otherwise accountable to any public body. It does not appear to have a budget[.]" Stukel, 344 Ill. App. 3d at 866. Further, "no . I member of the Councp is a member of the IBHE." Stukel, 344 Ill. App. 3d at 866; see also Pope v. Parkinson, 48 Ill. App. 3d 797, 800 ( 4th Dist. 1997) ( committee of four faculty members and four students that advised director of sports stadium and chancellor was not an advisory body because OMA "is not intended to open to the public the deliberations of merely informal; advisory committees who discuss internal University affairs."); People ex rel. Cooper v. c;arlson, 28 Ill. App. 3d 569, 572 (2d Dist. 1975) (OMA does not apply to voluntary "technical staff' meetings of "department heads or employees who seek to improve with dispatch their performance or function of assisting in the conduct of the people's business.").

: Conversely, in Reynard, the appellate court concluded that the Athletic Coµncil of Illinois State University (ISU) was an advisory body subject to FOIA. Reynard, 292 IIL App. 3d at 979. The Athletic Council serves "as an advisory body to the athletic director, with priinary advisory responsibility to the president. It gives advice on the development of budgets and policies governing the intercollegiate athletic program." Reynard, 292 Ill. App. 3d at 9{ 1. The Athletic Council "exists to provide. faculty input to the decision-making bodies at ISU." • Reynard, 292 Ill. App. 3d at 972. The athletic director "is free to reject its advice and there have been occasions when he has done so. The Council deals only with internal ISU matters,i it has no budget, and none of its members are paid." Reynard, 292 Ill. App. 3d at 972. In concluding that the Athletic Council was an advisory body subject to the requirements of OMA, howevc;r, the court emphasized that the Council is "part of the formal organizational structure of ISU and its duties and responsibilities are set forth in the supplement [to the bylaws of the ISU Senate]. The broad scope of the Council's responsibilities as set forth in the supplement contrasts shaJply with the limited duties of the committee in Pope [v. Parkinson}." Reynard, 292 Ill. App. 3d at 978.

In its response to this office, the School District asserted that the two medtings in question "were the second and third days of a parent workshop presented by Victoria Infante of Family Bridges. "2 According to the School District, "parents participated in activities aJd the presenter asked them questions regarding the topics" that wete presented during those t'Yo days.3 The School District contended that no parents attempted to provide public comment at t|e meetings. The School District asserted, in pertinent part:

Isabel Ramirez, BP AC's Parent Outreach Liaison, was present at both the April 21, 2017 and May 12, 2017 meetings and she stated that she was not aware of any members of the public who attempted to provide public comment and were not allowed to do so. * * * Ms. Ramirez stated that during the workshops parents were encouraged to share their experiences, an parents were able to respond to the presenter's questions, and she was not aware of any members of the public who tried to make a comment on anything other than the presentation itself. [4l I The School District further denied Mr. Silver's claim that the Committee is a "public body" under OMA. The School District stated that the Committee was established pursuant to section 5/14C- 10 of the School Code (105 ILCS 5/14C-10 (West 2016)), which provides: "Each school district I shall, accordingly, establish a parent advisory committee which affords parents the opportunity effectively to express their views and which ensures that [transitional bilingual educatioh programs] are planned, operated, and evaluated with the involvement of, and in consultation with, parents of children served by the programs." Applying the Stukel factors, the Schdol District argued that the Committee did not meet the characteristics of a public body: i I (1) Who appoints the members of the entity, the formality of their appointment, and whether they are paid for their tenure The School District asserted that it does not appoint members of the Committee, and members are not paid. The School District stated that the Committee's membership \s. instead governed by section 5/14C-10 of the School Code, which provides: "Such com1ittees shall be composed of parents of children enrolled in transitional bilingual education programs, transitional bilingual education teachers, counselors, and representatives from communiiy groups; provided, however, that a majority of each committee shall be parents of childreh enrolled in the transitional bilingual education· program." According to the School Distdct, "[p ]arents of District students enrolled in transitional bilingual education programs that attend the BP AC meetings are considered members of BP AC. General members are not appointed and anyone can attend the BP AC meetings. "5 The School District stated that the Committee 1mainly is comprised of program parents and guardians, but also "includes transitional bilingual education teachers, counselors and community leaders. 116 (2) The entity's assigned duties, inciuding duties reflected in the ehtity's bylaws or authorizing statute The Sch'.ool District contended that the Committee "does not have any assigned duties frorp the District and it operates autonomously."7 The School District directed this office to section 5/14C-10 of the School Code, emphasizing that the provision provides: "Once, established, these committees shall autonomously carry out their affairs, including the election of officers and the establishment of internal ruies, guidelines, and procedures." 105 ILCS 5/14C-10 (West 2016). • .. 1 (3) Whether the entity's role is solely advisory or whether it also has a· deliberative or investigative function ! I I The School District argued that the Committee's function "is solely advisory."8 The School District acknowledged that the Committee provides feedback and suggestions to the School District concerning its transitional bilingual education program, but argued that the Committee "does not make any decisions regarding the programs and there is no guarantee that the District will implement any of BP A C's recommendations. "9 The School District further asserted that it did not have a formal process for reviewing the Committee's recommendations.

·1 ( 4) Whether the entity is subject to government control or otherwise accountable to any public body !

The School District contended that the Committee is not subject to its control and that it "merely facilitates the transmission of information regarding the bilingual progratjls to parents and community members.1110 According to the School District, the Committee meets monthly and provides parents of children in transitional bilingual education programs thI chance to "learn about the curriculum, attend workshops, participate in conferences, and to provide feedback regarding these programs to the District." 11 • 1 (5) Whether the group has a budget The School District stated that the Committee does not have a budget.

(6) which it is a part The entity's place within the larger organization or institution; of : The School Districtcontended that the Committee is "separate from the overall organization of the District." 12 In particular, the School District emphasized that the Coipmittee conducts its affairs autonomously pursuant to the School Code. . I (7) The impact of decisions or recommendations that the group makes The School District contended that the Committee "does not directly mall any decisions regarding the District's bilingual program."13 The School District reiterated thpt . although the Committee makes suggestions to the School District about its bilingual programs, it may decline to adopt those suggestions. i , I In his reply, Mr. Silver argued that the Committee "is neither informal or 1an internal administrative entity" in contrast to the entities examined in Stukel, Pope, and Cbrlson. 14 He contended that the Committee was similar to the group of presidents and chancellors I examined in Stukel in only three of the discussed factors. Specifically; he acknowledged that the Committee lacked a budget, did not pay its members, and did not include members ofthq higher body, but contended that the council in Reynard likewise did not meet those factors. Mrl Silver disputed the School District's claim that the Committee is separate from the School District's formal organizational structure. He argued that the Committee "is defined by state statute and is a formal, standing advisory committee tt a school board that has a Transitional Bilingua) Education program. State statute and administrative rules establishing the BP AC descriipe concrete duties of a BP AC and mandates that the school board receive input from the Bu AC." 15 Mr. Silver cited section 228.30(c)(4) of title 23 of the Administrative Code (23 Ill. Adm.: Code §228.30(c)(4) (2014), amended at 38 Ill. Reg. 19757, effective September 29, 2014), which provides that school districts with transitional bilingual education programs are to establish a parent advisory committee that "shall participate in the planning, operation, and evaluatibn of programs." That provision further provides, in pertinent part: : I A) The committee shall:

i) meet at least four times per year;

ii) maintain on file with the school district minutes of these meetings;

iii) review the district's annual program application to the State Superintendent of Education; and iv) autonomously carry out their affairs, including the election of officers and the establishment of internal rules, guidelines, andproce.dures. (Section 14C-10 of the School Code). (Emphasis in original.)

In addition, Mr. Silver argued that the Committee advises the School District Board of Education (Board) on policy matters and asserted: "This fact is highly pertinent to the analysis of (:)MA , . I application, because the Open Meetings Act's declaration that public bodies conduct their business openly refers to the policymaking function of public bodies." 16 I After reviewing the information provided by Mr. Silver and the School District, and in light of the relevant factors, this office concludes that the Committee is not a "public body" under OMA. Although the Committee was formally established pursuantto an authorizing statute, the statute also expressly provides that " [ o ]nee established, these committees shall autonomously carry out their affairs[.]"17 The statute's implementing regulations similarly state that the committees are to conduct their affairs autonomously. Thus, the Committe¢ is not subject to the same oversight as, for example, the Board's standing committees, which are specifically creations of the Board and report directly to the Board. The available information suggests that the Committee serves a limited role within the School District's formal • 1 organizational structure as a liaison between the School District and pa]ients or legal guaidians of children who are enrolled in its transitional bilingual educational program. See, for example, Ill. Att'y Gen. PAC Req. Rev. Ltr. 35973, issued August 21, 2015, at 4 (concluding that a college's Paralegal Advisory Committee was not a "public body" subject to OMA because it functi.oned independently and had "only a limited function within the College's formal organizational structure as a liaison between the educational program and professionals working in the lqgal field."). Indeed, the School Code and regulations require that the majority of committee I I regulations require that the Committee meet at least four times a year and maintain meeting minutes with the School District, the Committee's duties appear solely advisory. In particu,iar, the Committee provides a forum in which parents can "express their views and which ensures that such programs are planned, operated, and evaluated with the involvement of, and in / consultation with, parents of children served by the programs." 18 While the Committee is tasked with reviewing the School District's annual program application to the State Superintenderit of Education, it is not subject to specific reporting requirements to suggest it is accountable tJ the Sh‚ol District or Board:· Fƒrther, any „o mittee feedback or r†comn:iendations are non_-/ . bmdmg on the School District; the specific impact of the Committee's mput on School District decisions is unclear. Additionally, based on this office's review of the April 21, 2017, an‡ May· 12, 2017, meeting agendas and minutes, it appears that a substantial function of the Comˆittee is to provide parents and guardians with resources and educational opportunities related to its bilingual program, such as workshops and conferences, rather than to advise the School District on policy matters. Because the Committee lacks the key features of an advisory body, thi1s office concludes that the Committee is not a "public body" subject to the requirements of OMA./ Because this determination concludes that the Committee is not a "public body" subject to OMA, this office need not address whether the Committee violated section2.06(g) of I OMA. I 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 t‰is letter.

I I I · Very truly yours, TERESA LIM Assistant Attorney General Public Access Bureau 48412 o not a pb sd

I ' I

cc: Via electronic mail Ms. Emily Witt Attorney for Cicero School District 99 Del Galdo Law Group, LLC 5110 West 24th Street Cicero, Illinois 60804 [email protected]