Aurora Library Board violated OMA by discussing branch relocation in closed session

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Dear and Mr. Savage:

of such a move. On November 20, 2018, this office forwarded a copy of the Request for Review to the Board and asked it to provide copies of the closed session minutes (in draft form if necessary) and verbatim recordings from the Board's closed session meetings held on March 28, 2018, July 25, 2018, and August 29, 2018, along with the records from any other meetings held in 2018 during which the Board discussed issues related to the possible relocation of the West Branch. This office also asked the Board to identify the closed session exception or exceptions that permitted those discussions, together with a written response t allegations.

On November 30, 2018, the Board provided this office with those materials and a written response in which it acknowledged that it discussed the possible relocation of the West Branch during the closed sessions of four meetings held in 2018, but argued that each of those discussions fell within the scope of either section 2( c)( 5) or 2( c)( 6) of OMA ( 5 ILCS 120/ 2( c)( 5), c)( 6) ( West 2017 Supp.), as amended by Public Act 100-646, effective July 31, 2018). The Board furnished this office with a written response to the Request for Review, along with a redacted version of its response suitable for disclosure to On December 4, 2018, this office sent a copy of the Board's response to he replied on December 9, 2018.

within 60 days of the discovery of the alleged violation. The request for review must be in writing, must be signed by the requester, and must include a summary of the facts supporting the allegation. ( Emphasis added.)

In his Request for Review, stated that the Board had not discussed the possibility of relocating the West Branch during open session at any of its meetings held during 2018, and had denied that there were plans in place to do so.. Thus, the alleged violations were not discovered until the October 16, 2018, press conference. Although each of the Board's 2018 closed session meetings during which it acknowledges discussing this issue were held more than 60 days before submitted his Request for Review on November 13, 2018, it appears that he could not have learned material facts concerning the alleged violations at the time that they occurred, despite using reasonable diligence, because the possible violations occurred during closed sessions. submitted this Request for Review to this office on November 13, 2018, which was within 60 days after the discovery of the alleged violations on October 16, 2018. Accordingly, this Request for Review was filed within the time limits set out in section 3. 5( a) of OMA, and this office has authority to review allegations.

2( c)( 6), and 2( c)( 21) ( West 2017 Supp.), as amended by Public Act 100- 646, effective July 31, 2018). 4 The Board argues that all discussions it held during those meetings relating to the potential move of the West Branch and were authorized by sections 2( c)( 5) and 2( c)( 6). 5 Sections 2( c)( 5) and 2(c)( 6) of OMA allow public bodies to enter into closed session to consider:

5) The purchase or lease of real property for the use of the public body, including meetings held for the purpose of discussing whether a particular parcel should be acquired.

6) The setting of a price for sale or lease of property owned by the public body.

The Illinois Appellate Court addressed the scope of section 2( c)( 5) of OMA in Galena Gazette Publications Inc., v. County ofJo Daviess, 375 I11. App. 3d 338 ( 2d Dist. 2007), in which the public body held a closed session meeting held to discuss the possibility of leasing a specific property for its use. There, the plaintiff conceded that the public body could permissibly discuss the material terms of the lease in closed session, but argued that the scope of section 2( c)( 5) did not extend to " peripheral matters" that were raised, such as how the public body would utilize the leased space. Galena Gazette, 375 Ill. App. 3d at 344. The court disagreed, finding that nothing in the language of section 2( c)( 5) distinguishes " material" matters from peripheral ones. Galena Gazette, 375 I11. App. 3d at 344. The court added that it would be impractical for the public body to have a meaningful discussion of the lease terms if it was precluded from discussing related details needed to put the terms in context. Galena Gazette, 375 Ill. App. 3d at 345. Because the public body' s closed session discussion centered on considerations involving the potential lease, the court held that the discussion was proper under section 2( c)( 5). Galena Gazette, 375 Ill. App. 3d at 346.

In contrast, the scope of section 2( c)( 6) limits a public body to discussing "[ t] he setting of a price for sale or lease" of property that it owns. ( Emphasis added.) Unlike section 2( c)( 5), the clear and unambiguous language of section 2( c)( 6), which must be strictly construed, does not allow a public body to discuss the sale or lease of its property in closed session other Board of Library Directors, Aurora (Illinois) Public Library, Meeting, March 28, 2018, Minutes 5; Board of Library Directors, Aurora ( Illinois) Public Library, Meeting, July 25, 2018, Minutes 5- 6; Board of Library Directors, Aurora (Illinois) Public Library, Meeting, August 29, 2018, Minutes 5.

than to set a price. While section 2( c)( 5) of OMA allows general closed session discussions concerning the purchase or lease of real property for the use of the public body, neither it, nor section 2( c)( 6), authorizes general discussions regarding the sale or lease of its existing public property. See Ill. Att' y Gen. Pub. Acc. Op. No. 15- 003, issued March 19, 2015, at 5 ( Section 2( c)( 6) of OMA does " not extend to the discussion of general issues concerning the disposal of publicly -owned property.").

In his reply, noted that the minutes from the Boards January 24, 2018, closed session, which the Board recently made available to the public, fail to identify any particular property that was discussed at the meeting, and fail to show that a proposed lease or contract for purchase was presented to the Board. further states that the Library is restricted from selling the West Branch without prior notice according to the terms of an intergovernmental agreement between the Library and the District. Therefore, he asserts, the Board cannot discuss the setting of a price for the sale or lease of the West Branch prior to deciding to terminate the intergovernmental agreement with the District, and closed session deliberation about the termination of that agreement would be outside the scope of the cited can enter closed session to discuss the setting of a price for sale or lease of property that the public body owns.

However, our review indicated that, for short portions of each of the four meetings at issue, the Board held discrete discussions concerning the property currently housing the West Branch that were not limited to the setting of a price for that property, along with some other matters related to the West Branch. We have thoroughly reviewed the arguments presented by the Board in the confidential portions of its written response to the Request for Review, and disagree that the entireties of the closed session discussions during these four meetings concerning the West Branch were authorized by either section 2( c)( 5) or section 2( c)( 6). Based on the timers on the copies of the recordings provided to this office, the unauthorized discussions occurred at:

January 24, 2018, meeting: 3: 16- 4: 32 and 6: 57- 8: 54; March 28, 2018, meeting: 17: 54- 18: 30, 20: 03- 22: 10, 23: 34- 24: 13, and 25: 36- 26: 39;

July 25, 2018, meeting: 6: 03- 7: 31, 13: 20- 14: 44, and 20: 11- 20: 38; August 29, 2018, meeting: 16: 15- 17: 25, 19: 45- 22: 54, and 25: 44- 25: 53.

Accordingly, this office concludes that the Board violated OMA by discussing certain unauthorized topics in closed session during its January 24, 2018, March 28, 2018, July 25, 2018, and August 29, 2018, meetings. To remedy these violations, this office asks that the Board vote to release to the public the limited portions of these closed session recordings as listed above. The remainder of the recordings may remain confidential unless the Board determines that the need for confidentiality no longer exists.

The Public Access Counselor has determined that resolution of this matter does not require the issuance of a binding opinion. Please contact me at ( 312) 814- 6437 or the Chicago address listed on the first page of this letter if you have questions.

Very truly yours,

LEAH BARTELT

Assistant Attorney General Public Access Bureau