Lake Forest HS District 115 Board did not violate OMA emergency notice requirement

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Dear Mr. Stein and Ms. Zinser:

This determination is issued pursuant to section 3.5(e) of the Open Meetings Act OMA) (5 ILCS 120/3.5(e) (West 2020)).

BACKGROUND

On October 26, 2020, Mr. Mark Stein, on behalf of the Lake Forest Education Association, submitted a Request for Review to the Public Access Bureau alleging that the Lake Forest Community High School District No. 115 (School District) Board of Education (Board) violated the requirements of OMA in connection with its October 22, 2020, meeting, which was conducted remotely. Specifically, Mr. Stein alleged that: (1) the Board posted the meeting agenda less than 48 hours in advance of the meeting, and no bona fide emergency existed; (2) the Board discussed matters in closed session that did not fall within the scope of section 2(c)(2) of OMA (5 ILCS 120/2(c)(2) (West 2020)), the exception it cited as the basis for closing the meeting; (3) the Board took improper final action on an agenda item by making a decision in closed session on " how to move forward in light of the recommendations made by the Superintendent and the Lake City DPH" related to full remote learning; and (4) the Board improperly restricted public comment by limiting public comment to 30-45 minutes and providing less than 48 hours to submit comments by e-mail.1 On November 2, 2020, this office forwarded a copy of the Request for Review to the Board and asked it to provide this office with copies of the October 22, 2020, meeting agenda, open and closed session minutes, and closed session verbatim recording for this office's confidential review, together with a written response to Mr. Stein' s OMA allegations. On November 17, 2020, this office received the requested response. In its response, the Board asserted that its closed session discussion also fell within the scope of section 2(c)(8) of OMA ( 5 ILCS 120/2(c)(8) (West 2020)). On November 19, 2020, this office forwarded a copy of the Board' s response to Mr. Stein; he replied on November 30, 2020.

DETERMINATION

Notice of October 22, 2020, Meeting Section 2.02(a) of OMA (5 ILCS 120/2.02(a) (West 2020)) provides:

Public notice of any 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 for the special, rescheduled, or reconvened meeting[.] * * Notice of an emergency meeting shall be given as soon as practicable, but in any event prior to the holding of such meeting, to any news medium which has filed an annual request for notice under subsection (b) of this Section.

OMA does not define the phrase "bona fide emergency." However, the Public Access Bureau has previously examined the plain meaning of a " bona fide emergency" and determined that unanticipated circumstances requiring immediate action that would justify providing less than 48 hours' notice [ ]" are necessary for a meeting to qualify as one held in the event of a bona fide emergency." Ill. Att'y Gen. PAC Req. Rev. Ltr. 23656, issued May 31, 2013, at 4.

Additionally, section 7(e) of OMA ( 5 ILCS 120/7(e) ( West 2020)) sets forth the requirements for emergency meetings held remotely because of a public health emergency, such as the COVID- 19 pandemic. Section 7(e)( 7)(A) of OMA provides:

7) Except in the event of a bona fide emergency, 48 hours' notice shall be given of a meeting to be held pursuant to this Section. Notice shall be given to all members of the public body, shall be posted on the website of the public body, and shall also be provided to any news media who has requested notice of meetings pursuant to subsection (a) of Section 2.02 of this Act. If the public body declares a bona fide emergency:

A) Notice shall be given pursuant to subsection ( a) of Section 2.02 of this Act, and the presiding officer shall state the nature of the emergency at the beginning of the meeting.

In its response to this office, the Board asserted that the October 22, 2020, meeting "was based on a bona fide public health emergency" and thus that it did not violate OMA' s notice requirements. 2 According to the Board, freshman and sophomores in the high school began in-person instruction through an e-hybrid learning schedule in mid-October. Juniors were scheduled to return to in-person learning on October 26, 2020, while seniors were scheduled for November 2, 2020. The Board stated that it previously passed a COVID-19 Reopening Plan Approval Resolution ( Resolution) authorizing the high school' s administration to determine if and when students would return to school. The Resolution required, however, that the superintendent discuss with the Board any substantive changes to the School District' s re-opening plan, which the Board could affirm, modify, or disapprove; the Board could also take no action. The Board stated that on October 20, 2020, the Lake County Public Health Department issued a recommendation that schools move to virtual learning to slow the spread of COVID. The Board acknowledged that it posted notice of its October 22, 2020, meeting on October 21, 2020, but asserted that the circumstances constituted a bona fide emergency, and that the meeting' s purpose was to consider the administration' s recommendation for an " adaptive pause" given the county health department recommendation and guidance from the Illinois State Board of Education ( ISBE). 3 Citing the ISBE guidance, the Board explained that " an adaptive pause is a strategy that allows for movement into any level of remote learning to prevent disease transmission" and allows " delayed reopening at the start of a specific school term or a pivot to remote learning once the school year is underway for school officials to have time to plan for next steps with parents, teachers and staff." 4 The Board argued, in pertinent part:

There can be no doubt that it was appropriate for the Board, after learning of the October 20, 2020, Lake County Public Health Department recommendation that schools close, to notice, on October 21, 2020, a meeting for October 22, 2020 to address whether that recommendation and ISBE guidance together required Board review with respect to an adaptive pause. This was particularly true when juniors were planning to return to school four school days after the Health Department's recommendation.[5]

Emphasis in original.)

In reply to that answer, Mr. Stein asserted that the Board failed to publicly identify at the meeting the reason for calling an emergency meeting in violation of section 7(e)( 7)(A) of OMA. He stated that the Board only recited at the beginning of the meeting that it was being held remotely pursuant to the Governor's disaster proclamation. Mr. Stein also contended that the Board had sufficient time to schedule a meeting with 48 hours advance notice to the public, asserting that the Board could have scheduled a meeting on the Friday rather than on Thursday.

The Board's October 22, 2020, meeting agenda states that it is "An Emergency Meeting of the Board of Education" and that the meeting would be held remotely in light of public health concerns.6 The agenda lists one subject for discussion and possible action:

III. Reports/Discussions Adaptive Pause IV. Action Items 1. Approval of Adaptive Pause[7]

This office has previously determined that a public body did not violate section 2.02(a) by providing less than 48 hours' notice of a meeting held on March 12, 2020, concerning an emergency declaration for the COVID-19 pandemic because the emergency was bona fide. Ill. Att'y Gen. PAC Req. Rev. Ltr. 62712, issued June 8, 2020, at 4. In that matter, this office observed that "public bodies across the State were taking swift measures to react to the COVID- 19 pandemic in light of is rapid spread and devastating impact. The uncertainty and severity involved in the pandemic presented unanticipated circumstances warranting immediate action." Ill. Att'y Gen. PAC Req. Rev. Ltr. 62712, at 4.

It is undisputed that the October 22, 2020, meeting agenda was posted on the School District's website a day before the meeting. Notably, the county public health department had issued a recommendation related to the pandemic within a week of the School District' s plan to transition juniors to in-person learning and seniors shortly thereafter. Although Mr. Stein contended that the Board could have scheduled its meeting a day later to provide 48 hours advance notice to the public, the Board has demonstrated that the changing circumstances surrounding the pandemic and unanticipated update in county public health guidance on October 20, 2020, constituted a bona fide emergency necessitating prompt action. It is not unreasonable for a school board to consider a county health department recommendation as soon as possible to give staff and parents adequate notice of possible changes to a scheduled re-opening plan. Further, the agenda and minutes reflect that the meeting was limited to addressing only the adaptive pause. Accordingly, this office concludes that the Board did not violate section 2.02(a) of OMA by holding an emergency meeting on October 22, 2020, with less than 48 hours' advance notice.

However, section 7(e)( 7)(A) of OMA provides that if a public body holds a meeting remotely pursuant to a public health emergency and is unable to provide at least 48 hours' advance notice, " the presiding officer shall state the nature of the emergency at the beginning of the meeting." Based on this office's review of the verbatim recording of the beginning of the October 22, 2020, meeting, the presiding officer announced that the Board President had determined that it was not practical or prudent to hold an in-person meeting and likewise not feasible for the public to be present due to public health concerns. The presiding officer did not, however, state the nature of the particular bona fide emergency that precipitated that meeting, as required by section 7(e)( 7)(A). The Board should be mindful of its obligation to publicly state the nature of the bona fide emergency at the beginning of the meeting if it holds an emergency meeting remotely under section 7(e) of OMA with less than 48 hours' advance notice.

Closed Session Discussion OMA is intended " to ensure that the actions of public bodies be taken openly and that their deliberations be conducted openly." 5 ILCS 120/1 (West 2020). Accordingly, OMA requires that all meetings of a public body remain open to the public unless an exception in section 2(c) of OMA is properly invoked. 5 ILCS 120/2(a), (c) (West 2020). The section 2(c) exceptions are to be " strictly construed, extending only to subjects clearly within their scope." 5 ILCS 120/2(b) (West 2020).

Section 2(c)(2) of OMA allows discussion in closed session of "[c]ollective negotiating matters between the public body and its employees or their representatives, or deliberations concerning salary schedules for one or more classes of employees." By creating the section 2(c)(2) exception, the General Assembly recognized " that the very nature of meaningful collective bargaining requires that certain phases of the negotiating process must be conducted privately." Ill. Att'y Gen. Op. No. 80-024, issued August 12, 1980, at 10-11. Generally, wages, hours and other terms and conditions of employment are proper subjects for collective bargaining, as well as any other subject with respect to which the parties may have chosen to bargain." 1980 Ill. Att'y Gen. Op. 80-024, at 9. The Public Access Bureau has previously determined that the exception for collective negotiating matters authorizes public bodies to enter closed session to discuss " subjects about which the parties are going to bargain." Ill. Att'y Gen. PAC Req. Rev. Ltr. 52158, issued June 14, 2018, at 3.

Additionally, section 2(c)(8) of OMA permits the discussion of "[s]ecurity procedures, school building safety and security, and the use of personnel and equipment to respond to an actual, a threatened, or a reasonably potential danger to the safety of employees, students, staff, the public, or public property." Under its plain language, the 2(c)(8) exception permits a public body to discuss security and safety issues and the use of staff and equipment to respond to actual, threatened, or reasonably possible dangers to people and public property.

The Board asserted that the teacher' s union, the Lake Forest Education Association, had in early August "made a demand that the District bargain the specific issue of whether it is safe for schools to reopen. Those negotiations remain open, active, and ongoing and are directly implicated by the administration's report on October 22."8 ( Emphasis in original.) According to the School District, the administration and union met on multiple occasions prior to the October 22, 2020, meeting without reaching a final agreement. The Board argued that all of the issues it discussed in closed session pertained " to the implications of reopening on wages, hours, and working conditions relating to bargaining."9 The Board further argued that disclosure of its discussions " would obliterate the District' s ability to defend its position in negotiations."10 Additionally, the Board contended that it properly discussed matters in closed session pursuant to section 2(c)(8): " All discussions at issue during closed session were focused on the potential danger to safety of employees, students, staff, and others raised by the Lake County Health Department declaration on October 20 and how the District should use personnel and equipment to address that danger." 11 Mr. Stein disputed the Board's claim that disclosure of the Board's closed session discussion would interfere with the administration' s ability to negotiate with the teacher' s union. He contended that there were no active and ongoing negotiations, asserting that the union had not met with the administration since the first week of October and that a hybrid model had already been implemented in the second week of October. Mr. Stein acknowledged that the union disapproved of the instruction model," and he emphasized that the administration and the union never bargained over the adaptive pause.12 Mr. Stein further disputed the Board's claim that the closed session discussion fell within the scope of the 2(c)(8) exception. He noted: " Every school in this country is dealing with the Pandemic. There is no privacy issue impinging on the discussion, or police investigation that would be compromised by having an open discussion." 13 Based on this office's confidential review of the verbatim recording of the closed session, the Board did not limit its discussion to topics that fell within the scope of the 2(c)(2) exception. A limited portion of the Board's discussion at the beginning of the closed session directly concerned the wages, hours, and working conditions of teachers. This office' s review, however, determined that the remaining discussion concerned the adaptive pause and did not pertain directly to collective bargaining issues. Although an adaptive pause presented implications for teachers and staff, there is no indication that the administration and the union bargained over the adaptive pause, and most of the closed session discussion did not center on the impacts of an adaptive pause on the particular working conditions of staff. The discussion did not, for instance, focus on specific concerns or complaints from teachers that would be subject to collective bargaining or weigh specific collective negotiating strategies. Instead, the Board considered the current public health guidance, the appropriateness of an adaptive pause, and other issues related to the adaptive pause. Accordingly, this office is unable to conclude that the 2(c)(2) exception applied to the entire discussion.

Further, the Board has not demonstrated that its discussion fell within the scope of the 2(c)(8) exception. Based on this office's review of the ISBE guidance, an adaptive pause is a school' s shift to any level of remote learning and concerns a length of time during which a school will administer remote learning. It relates to a mode of learning in response to public health concerns rather than building security concerns. Additionally, it is not apparent from this office' s review of the recording that the Board discussed how to use personnel and equipment to respond to potential dangers to the health and safety of students and staff. The Board generally noted that health and screening measures were in place at the high school but did not discuss any of those measures in detail. Although an adaptive pause relates to public health concerns and is intended to prevent disease transmission, the Board has not illustrated that the adaptive pause constitutes a security procedure or that it discussed specifically the safety and security of the high school building, such as security measures currently in place at the building. Accordingly, this office is unable to conclude that the discussion fell within the scope of the section 2(c)(8) exception.

This office requests that the Board vote to make available for public inspection a copy of the verbatim recording of the closed session portion of its October 22, 2020, meeting, but the Board may redact the first 15 minutes and 50 seconds of the recording.

Final Action Section 2(e) of OMA (5 ILCS 120/2(e) (West 2020)) provides: "No final action may be taken at a closed meeting. Final action shall be preceded by a public recital of the nature of the matter being considered and other information that will inform the public of the business being conducted." ( Emphasis added.)

In Gosnell, the plaintiff alleged that a school board improperly took final action in closed session by making a request for mediation as an alternative to the negotiations it had been conducting with a union. Gosnell v. Hogan, 179 Ill. App. 3d 161, 176 ( 5th Dist. 1989). The court held:

T]he request for mediation was part of the process of reaching a final action with the secretaries union. Mediation, similar to negotiating, is not an end in itself, but rather, a means to an end. Negotiations and mediations are made up of many " unilateral" decisions, such as what to offer or counteroffer, and to hold that each of the unilateral strategical decisions that make up the constituent parts of a negotiation is in and of itself a final action is unreasonable. Gosnell, 179 Ill. App. 3d at 176.

Accordingly, a component of a public body's process of reaching final action generally does not, itself, constitute final action. See, for example, Ill. Att'y Gen. PAC Req. Rev. Ltr. 32463, issued July 14, 2015, at 3 (city council's vote to direct staff to explore funding for a sporting event bid was not final action because it was merely a step in furtherance of reaching final action). Rather, final action' generally must bring a matter to a resolution." Ill. Att'y Gen. PAC Req. Rev. Ltr. 43111, issued August 4, 2016, at 3 (vote to reconsider whether to award a contract to the low qualified bidder was not final action because it did not resolve the matter in that "final action on whether to in fact award the contract was held over until the next meeting."). A public body may generally reach a preliminary consensus in closed session but must vote on the matter in open session for valid final action to occur. Bd. of Educ. of Springfield Sch. Dist. No. 186 v. Attorney Gen. of Illinois, 2017 IL 120343, ¶74, 77 N.E.3d 625, 637 (2017).

The Board denied that it took any final action at the October 22, 2020, meeting. The Board contended that "[ d]uring the closed session, the Superintendent explained his recommendation with respect to reopening and listened to the Board members' opinions about potential impacts on collective bargaining and safety[,]" but that the Board took no actions in the closed meeting. 14 The Board stated that the superintendent announced in open session his recommendation "that the school take an adaptive pause, meaning junior students would not return to school the following Monday. Notably, the Superintendent notified the public that, per the Resolution, the Board was not required to act regarding his recommendation for it to be effective." 15 The Board emphasized that the Resolution only required the administration to inform the Board of changes to the re-opening plan and asserted that the superintendent made the decision to take an adaptive pause.

In reply, Mr. Stein expressed skepticism that no action was taken by the Board during the closed session. He asserted that the meeting agenda referenced an "Adaptive Pause" without further explaining what that term meant, and that the Board did not explain the Adaptive Pause until after it returned from closed session. He contended that the administration could have modified its recommendation during the closed session without the public knowing of the changes given the lack of information in the agenda and discussion prior to the Board's closed session. Additionally, Mr. Stein contended that the Board affirmed the superintendent's recommendation by expressing its support for the adaptive pause. In particular, he asserted that affirming the plan is itself an action within the meeting of both the resolution and the Open Meetings Act." 16 ( Emphasis in original.) Mr. Stein argued that the Board discussed and approved the superintendent's reopening plan modification "behind closed doors and then came out saying ' we have nothing to vote on because we are all in agreement.'" 17 Based on this office' s review of the closed session recording and the Resolution, the Board did not take final action in closed session. The Board discussed the superintendent's recommendation for an adaptive pause in closed session but announced its support for the adaptive pause in open session. The Board's support for an adaptive pause generally did not resolve the matter. While the adaptive pause at issue put a hold on juniors returning to in-person learning, the Board stated in open session that it would discuss the matter further the following week in another Board meeting. Indeed, the minutes of the Board' s October 29, 2020, special meeting indicate that the Board voted at that meeting to approve the adaptive pause.18 Accordingly, this office is unable to conclude that the Board took " final action" on the adaptive pause during the October 22, 2020, closed session in violation of section 2(e) of OMA.

Public Comment Section 2.06(g) of OMA ( 5 ILCS 120/ 2.06(g) (2020)) provides that "[ a] ny person shall be permitted an opportunity to address public officials under the rules established and recorded by the public body." Section 2.06(g) of OMA does not prescribe a method for public comment during a public health emergency that precludes a public body from convening an in- person meeting. Similarly, the requirements for holding remote meetings without the physical presence of a quorum in section 7(e) of OMA referenced above do not address specifically how members of the public may address public officials.

The Public Access Bureau has previously determined that to warrant further action by this office, a Request for Review must set forth facts demonstrating that a member of the public attempted to address public officials during an open meeting but was improperly restricted from doing so. See, for example, Ill. Att'y Gen. PAC Req. Rev. Ltr. 43028, issued July 22, 2016 (allegation that public comment rules violate OMA insufficient to merit further action absent facts indicating that any member of the public was improperly restricted from addressing public officials); Ill. Att'y Gen. PAC Req. Rev. Ltr. 62825 62826, issued July 29, 2020 (unable to conclude that a board rule capping e-mailed public comments to 200 words per person violated 2.06(g) of OMA in the absence of facts indicating that the board enforced the rule to limit any particular submitted comments).

In its answer, the Board stated that no member of the public requested to provide public comment after 12:00 p.m. on October 22, 2020, and it did not receive more requests for comment than would fit within the 45-minute period for public comment. In reply, Mr. Stein contended that the submission deadline and time limit discouraged members of the public from participating in public comment.

According to the Board section of the School District' s website, members of the public body wishing to participate in public comment at a virtual meeting could do so by e- mailing a request to its Chief Technology Officer by noon on the day of the meeting. 19 The website further stated that the Chief Technology Officer would send instructions to the requester on how to call in to provide public comment. 20 Members of the public could also submit written comments.21 Mr. Stein did not provide specific facts suggesting that he or another member of the public attempted to submit a request to provide public comment, and the Board enforced a rule to limit those comments. The minutes of the October 22, 2020, meeting reflect that several members of the public provided public comment during the meeting.22 Because this office has not received information to indicate that a member of the public attempted to address the Board but was improperly restricted from doing so, there is no basis for this office to conclude that the Board violated section 2.06(g) at its October 22, 2020, meeting.

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, TERESA LIM Assistant Attorney General Public Access Bureau 65418 o 202 notice proper 2c2 proper improper 2c8 improper 2e final action proper 7e7 improper 206g proper sd cc: Via electronic mail Ms. Jackie Gharapour Wernz Attorney for Lake Forest Community High School District No. 115 Franczek P.C. 300 South Wacker Drive, Suite 3400 Chicago, Illinois 60606 jw@franczek. com