Beasley Academic Center LSC violated OMA by not posting agenda 48 hours in advance

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Dear and Ms. Carrethers:

to the allegations raised by Request for Review.' On June 1, 2018, Ms. Nicole Carrethers, Chairperson of the Council, responded on behalf of the Council, and subsequently provided this office with copies of the audio recordings of the April 2, 2018, and April 10, 2018, meetings, including the recording of the April 10, 2018, closed session. On June 1, 2018, this office forwarded a copy of the Council' s response as well as the response from the interim principal to he did not reply.

DETERMINATION

The public policy of this State as provided in OMA is that " public bodies exist to aid in the conduct of the people's business and that the people have a right to be informed as to the conduct of their business." ( 5 ILCS 120/ 1 ( West 2016)). See also Gosnell v. Hogan, 179 III.

App. 3d 161, 171 ( 5th Dist. 1989) ( the intent of OMA "is to assure that agency actions be taken openly and that their deliberations be conducted openly.").

April 2, 2018, Meeting Section 2. 02( a) of OMA ( 5 ILCS 120/ 2. 02( a) ( West 2016)) provides that "[ p] ublic notice of any special meeting * * * shall be given at least 48 hours before such meeting, which notice shall also include the agenda for the special * * * meeting[.]" Correspondingly, section 2. 02( b) of OMA ( 5 ILCS 120/ 2. 02( b) ( West 2016)) provides that "[ p] ublic notice shall be given by posting a copy of the notice at the principal office of the body holding the meeting or, if no such office exists, at the building in which the meeting is to be held." Additionally, section 2. 02( c) of OMA ( 5 1LCS 120/ 2. 02( c) ( West 2016)) provides, in pertinent part:

The public body conducting a public meeting shall ensure that at least one copy of any requested notice and agenda for the meeting is continuously availablefor public review during the entire 48- hour period preceding the meeting. Posting of the notice and agenda on a website that is maintained by the public body satisfies the requirement for continuous posting under this subsection ( c). Emphasis added.)

Accordingly, the Public Access Bureau has determined that if a public body does not post meeting notices on its website, it "should post meeting notices in a location where they may be continuously viewable from the outside of [the building where the meeting is being held], such as on or near the front door or facing outward from a window." I11. Att' y Gen. PAC Req. Rev. Ltr. 29886, issued September 16, 2014, at 2- 3; see also Ill. Att' y Gen. PAC Req. Rev. Ltr. 48574, issued August 22, 2017.

alleges that the notice was posted on the counter of the School' s office on March 29, 2018, which was during spring break " when no one was present to observe the notice as school was not in session. The meeting was held upon return to school Monday. April 2, 2018." 2 The School's spring break was from Monday, March 26, 2018. through Friday, March 30, 2018. 3 A review of the records provided to this office establishes that on March 29, 2018, Ms. Carrethers asked the interim principal to post the agenda in both buildings and asked the Council's secretary to post the agenda on the School's website.4 On June 13, 2018, Ms. Carrethers informed an AAG that the agenda for the April 2, 2018, special meeting was posted in the School' s main office and on the Council's board in the foyer of the School but that it was not posted on the School' s website. A review of the agenda states that a " Special Call Meeting" will be held on " Monday, April 2, 2018 ( 5: 30 p. m.). i5 Item 7 of the agenda provides: " Principal Selection ( Closed Session/ Interview/ Vote)." 6 A notice of the meeting, but not the agenda, was posted on the School' s website; the notice states that "[ t] he Principal selection process is underway. Weare now in the process of conducting interviews. A special cal[ meeting will be held on Saturday 3/ 24/ 18 at 10 am and Monday 4/ 2/ 18 @ 5: 30 pm."' This notice was posted by the Council' s secretary on March 22, 2018. 8 The April 2, 2018, meeting minutes show that apart from approving the agenda and minutes of the Council' s previous meeting, the meeting consisted of a closed session discussion of candidates for principal and open session votes that narrowed the field of candidates to three and established a process for making a final selection.

Although the notice of the meeting was continuously posted on the School' s website, the meeting agenda was not continuously available for public review during the entire 48- hour period preceding the April 2, 2018, meeting. Accordingly, this office concludes that the Council violated the agenda posting requirement of section 2. 02( c) of OMA. However, because the general subject matter of the only substantive topic addressed at the meeting, the principal selection, was included in the posted notice, this office further concludes that the Council' s failure to post an agenda which was continuously available for public review did not meaningfully deprive the public of advance notice of the public business conducted at the meeting. Therefore, no action by the Council is required to remedy its violation of section 2. 02( c) of OMA.

April 10, 2018 Meeting Section 2. 02( c) of OMA alleges that during its April 10, 2018, meeting the Council improperly voted on whether to add a candidate to the principal selection process, because that issue had been added to the agenda earlier in the meeting. A review of the minutes reveals that during the April 10, 2018, meeting, made a motion, which the Council passed, " to add an item under old business pertaining to adding Principal Norwood to the principal finalist list with the other 3 candidates. i9 Later on in the meeting the Council voted in open session not to add Ms. Norwood as a fourth candidate. 10 informed an AAG that at a subsequent meeting the Council voted and chose a new principal for the School.

Section 2. 02( a) of OMA provides that "[ t] he requirement of a regular meeting agenda shall not preclude the consideration of items not specifically set forth in the agenda." Accordingly, adding the item to the agenda and deliberating on whether an additional candidate should be considered was permissible under OMA. However, whether the Council violated OMA by voting on that motion is governed by section 2. 02( c) of OMA, which provides that a] ny agenda required under this Section shall set forth the general subject matter of any provision to ensure that agendas provide sufficiently descriptive advance notice of the matters upon which a public body anticipates taking final action:

T] here was just no real requirement as to how specific they needed to be to the public of what they were going to discuss that would be final action. And this just says that you have to have a general notice if you're going to have and take final action, as to generally what' s going to be discussed so that — that people who. follow their units of local government know what they' re going to be acting upon. Remarks of Sen. Dillard, May 16, 2012, Senate Debate on House Bill No. 4687, at 47.

The Public Access Bureau has previously determined that " the General Assembly' s use of the term 'general subject matter' signifies that a meeting agenda must set forth the main element( s), rather than the specific details, of an item on which the public body intends to take final action." Ill. Att'y Gen. PAC Req. Rev. Ltr. 45667, issued February 16, 2017, at 4- 5 ( agenda item listing Appointment of City Administrator" set forth the general subject matter of a vote to award a five-year contract for that position).

This office has reviewed the agenda for the April 10, 2018, meeting, which lists as the third bullet point under item eight ( 8), under old business, " Principal Selection ( Closed SessionlVote)." The Council' s agenda notified those persons who may have been interested in attending the meeting that it would vote on matters regarding the selection of the principal. Thus the agenda sufficiently identified the general subject matter of its vote on whether to add a fourth candidate for principal.

Moreover, the Council' s vote on whether to add a fourth candidate was not a form of "final action" that the Council was required to identify on the agenda. OMA does not define final action," and no Illinois court has precisely defined that term. However, in Gosnell v. Hogan, 179 I11. App. 3d 161, 176 ( 5th Dist. 1989), the court examined whether a board' s decision in closed session to authorize a request for mediation as an alternative to the negotiations it had been conducting with the secretaries' union was a final action, and concluded that it was not; instead, the board' s authorization of mediation was merely a step towards reaching final action on the union' s contract. Accordingly, " final action" generally must bring a matter to a resolution. Compare Davis v. Board of Education of Farmer City — Mansfield Community Unit School District No. 17, 63 111. App. 3d 495, 499 ( 4th Dist. 1978) ( adoption of resolution in closed session stating tentative intent to terminate superintendent' s employment " did not dispose of the question of whether that employment should be terminated and, therefore, was not final action[,]" where board subsequently took final action to terminate the superintendent' s 1985) ( vote to remove commissioner from police board in open session was final action); 11 see also Ill. Att' y Gen. PAC Req. Rev. Ltr. 32463, issued July 14, 2015, at 3 (" a component of a public body' s process of reaching final action generally does not, itself, constitute final action.").

Here, in voting not to add a fourth candidate to the principal finalist list, the Council only took a step in furtherance of reaching final action. The Council' s vote did not resolve the matter— final action on hiring a principal took place at a subsequent meeting. Because the Council' s vote declining to add an additional principal candidate to its finalist list did not constitute final action on the selection of the principal, the Council was not required to specifically include the general subject matter of that vote on its April 10, 2018, meeting agenda. Nevertheless, as discussed above, the agenda did identify the general subject matter of the principal selection process that the Council addressed.

Section 2( e) of OMA alleges that during the closed portion of its April 10, 2018, meeting, the Council voted against adding a candidate to the principal finalist list. Section 2( e) of OMA 5 ILCS 120/ 2( e) ( West 2017 Supp.)) provides that "[ n] ofinal action may be taken at a dosed meeting." ( Emphasis added.) While a public body may take a preliminary vote in a closed session, a public body must take all final actions in an open meeting. Bd. ofEduc. ofSpringfield Sch. Dist. No. 186 v. Attorney Gen, of Illinois, 2017 IL 120343, 11173- 74, 77 N. E. 3d 625, 637 2017). As explained above, the vote concerning adding a principal candidate to be considered whether or not to add L. Norwood to the final candidate list." 13 The Council should be aware that while section 2( c)( 1) of OMA, 5 ILCS 120/ 2( c)( 1) ( West 2017 Supp.), allows a public body to discuss the appointment or employment of specific individuals in closed session, it does not allow closed session deliberation regarding the principal selection process in general. 111. Att'y Gen. Pub. Acc. Op. No. 12- 011, issued July 1 I, 2012, at 3 ( because section 2( c)( 1) only permits public bodies to discuss the relative merits or conduct of individual employees, public body exceeded the scope of the exception by discussing in closed session general budgetary matters that could impact employees).

In accordance with the conclusions in this determination, this office requests that the Council review its practices to ensure that it is in compliance with OMA at future meetings. The Public Access Counselor has determined that resolution of this matter does not require the issuance of a binding opinion. This file is closed. If you have any questions, please contact me at ( 312) 814- 5201.