Dunlap School Board violated OMA by adding agenda items less than 48 hours before special meeting

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Dear and Ms. Disharoon:

This determination is issued pursuant to section 3. 5( e) of the Open Meetings Act OMA) (5 ILCS 120/ 3. 5( e) ( West 2016)). For the reasons that follow, the Public Access Bureau concludes that the Dunlap Community Unit School District No. 323 Board ofEducation (Board) violated the advance notice requirements of OMA in connection with its November 28, 2017, special meeting. However, the Public Access Bureau concludes that the Board did not otherwise violate OMA.

On December 11, 2017, submitted this Request for Review alleging that the Board violated OMA by failing to make verbatim recordings of certain closed session meetings in which the Board discussed the termination of the School District's superintendent. also alleged that the Board improperly modified the agenda(s) for unidentified meetings related to the hiring of the interim superintendent. On December 28, 2017, this office sent a copy of the Request for Review to the Board and requested that it provide this office with copies of the agendas, meeting minutes ( both open and closed), and closed session verbatim recordings for the meetings in question. This office also requested that the Board respond in writing to the allegations in the Request for Review.

On January 4, 2018, the Board responded, providing copies of the requested materials and a written response. With respect to the first allegation, the Board provided copies of the verbatim audio recordings from five closed sessions where the Board discussed the termination of the School District's superintendent. The Board asserted that it had reviewed the closed session recordings in question and had no reason to believe that any portion of the meetings was not recorded. In addition, the Board President, who was responsible for recording each of the closed sessions, confirmed that, to her knowledge, all of the referenced closed meetings were recorded in their entireties. With respect to the second allegation, the Board speculated that its November 28, 2017, special meeting was the meeting referenced in the Request for Review. The Board asserted that, because of the need to secure an interim superintendent, the Board President amended the November 28, 2017, special meeting agenda less than 48 hours before the meeting to include additional discussion items. The Board also did not submit a reply.

revealed lengthy and thorough discussions of the topic in question and provided no basis to conclude that the closed sessions were not recorded in their entireties. Because this office has not received any evidence indicating that the Board failed to adequately keep verbatim recordings of the closed sessions of its meetings, this office concludes that the Board did not violate the verbatim recording requirement of section 2.06( a) of OMA.

Amendment of Special Meeting Agenda Section 2. 02( a) of OMA ( 5 ILCS 120/ 2. 02( a) ( West 2016)) provides, in pertinent part:

An agenda for each regular meeting shall be posted at the principal office of the public body and at the location where the meeting is to be held at least 48 hours in advance of the holding of the meeting. A public body that has a website that the full-time staff of the public body maintains shall also post on its website the agenda of any regular meetings of the governing body of that public body. Any agenda of a regular meeting that is posted on a public body's website shall remain posted on the website until the regular meeting is concluded. The requirement of a regular meeting agenda shall not preclude the consideration of items not specifically set forth in the agenda. ( Emphasis added.)

Section 2.02( a) of OMA also provides that "[ p]ublic notice ofany special meeting except a meeting held in the event of a bona fide emergency, or of any rescheduled regular meeting, or of any reconvened meeting, shall be given at least 48 hours before such meeting, which notice shall also include the agenda[.]"

The Public Access Bureau has previously concluded that, because the plain language of section 2.02(a) of OMA only authorizes consideration of items not set forth on a regular meeting agenda, a public body violates OMA by discussing matters during a special meeting which are not listed on the agenda. Ill. Att'y Gen. PAC Req. Rev. Ltr. 30368, issued December 17, 2014, at 4. In this instance, the Board acknowledged that it amended the agenda for its November 28, 2017, special meeting less than 48 hours before that meeting began and discussed the items it had added, but maintained that it did not improperly discuss those agenda items because it did not take final action on them. In support, the Board cited Rice v. Board of Trustees ofAdams County, 326 Ill. App. 3d 1120 ( 4th Dist. 2002), in which the court stated that a public body may deliberate and discuss— but not take final action— on matters that do not appear on a regular meeting agenda. Rice, 326 Ill. App. 3d at 1123 (" We find 'the consideration of items not specifically set forth in the agenda to be in the nature of deliberations and discussion and not actions taken."). However, the plain language of section 2. 02( a) only authorizes " the consideration of items" that are not listed on a regular meeting agenda; it is irrelevant whether or not the Board voted to take action on items discussed at a special meeting which did not appear on the agenda. By amending the special meeting agenda to add items less than 48 hours before the meeting began, the Board did not provide sufficient advance notice as required by section 2. 02(a) of OMA. Accordingly, this office concludes that the Board held an improper discussion during its November 28, 2017, special meeting. Nonetheless, because the Board did not take final action in connection with any of the three added agenda items during that special meeting, no remedial action is necessary at this time. This office reminds the Board that a public body is limited at special meetings to discussing items listed on the agenda posted at least 48 hours in advance ofthe meeting.

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

CHRISTOPHER R. BOGGS Assistant Attorney General Public Access Bureau 50648 o 202a notice improper 206a proper sd