Dunlap School Board violated OMA by discussing book removal policy in closed session

This reading view follows the source PDF's positioned text blocks. Page headers, repeated office furniture, and lower-margin notes are kept out of the narrative; source notes are available below. Reconstruction is automatic and imperfect — the PDF is the authoritative version, and it's linked on this page.

Via electronic mail Mr. Jay E. Greening Miller, Hall & Triggs, LLC 416 Main Street, Suite 1125 On May 4, 2022, this office forwarded a copy of Ms. Fee's Request for Review to the Board and asked it to provide a copy of the open session and closed session minutes from its April 20, 2022 meeting, along with the verbatim recording of the closed session discussion for this office' s confidential review. This office asked that the Board provide a written response to the allegation that it improperly entered closed session to discuss removing the book and, if it did discuss the book, then to identify the exception in section 2( c) of OMA that served as the basis for discussing that topic. Further, this office asked the Board to address whether it made a decision and/ or held a vote about the book during the closed session, or during open session or outside of the meeting. If the Board members exchanged any communications about the topic, this office asked to review copies of any such communications.

Upon her receipt of this office' s inquiry letter to the Board, Ms. Fee sent this office a screenshot of a Facebook post from before the Board meeting on April 20, 2022, in which Board President Abby Humbles appeared to comment on a parent's complaint about the book by stating: " This is being addressed. I have shared this information with our administrators and fellow board members."' Ms. Fee alleged that "[ t] his clearly shows that the board discussed this issue outside of the board meeting held that night. i3 On May 27, 2022, the Board provided this office with its written response and copies of the open and closed session minutes, but no closed session verbatim recording and no communications among Board members. On June 21, 2022, Ms. Fee submitted a reply.

their scope. i6 See also Henry v. Anderson, 356 Ill. App. 3d 952, 996- 97 ( 4th Dist. 2005) ( strictly construing OMA section 2( c)( 1) 7).

Section 2( c)( 1) of OMA Section 2( c)( 1) of OMA, the exception on which the Board relied for the Hey, Kiddo- related discussion, permits a public body to enter closed session to discuss "[ t] he appointment, employment, compensation, discipline, performance, or dismissal of specific employees of the public body or legal counsel for the public body, including hearing testimony on a complaint lodged against an employee of the public body or against legal counsel for the public body to determine its validity." The section 2( c)( 1) exception is designed to protect the reputation and identity of specific individuals. See, for example, Ill. Att'y Gen. Pub. Acc. Op. No. 15- 007, issued September 16, 2015, at 4 ( finding that discussions concerning the elimination of a job position held by a single employee for budgetary reasons would not implicate an employee' s reputation, and therefore did not fall within the exception in section 2( c)( 1)); Ill. Att'y Gen. Pub. Acc. Op. No. 16- 013, issued December 23, 2016, at 4 ( section 2( c)( 1) did not authorize discussion of across- the- board salary increase for a broad category of employees).

In the Board's response to this office, the Board stated that a verbatim recording of the pertinent discussion does not exist as a result of a failure of the recording device. Thus, the Board appears to have inadvertently violated section 2.06( a) of OMA8 in connection with its April 20, 2022, meeting, because section 2. 06( a) requires that "[ a] 11 public bodies shall keep * * a verbatim record of all their closed meetings in the form of an audio or video recording." The Board notified this office that it had since purchased a new recording device, and enclosed a receipt for that product.

Regarding the contents of the closed session discussion, the Board explained that t] his reason [ section 2( c)( 1)] was given, at least in part, to provide the board with information about the failure of the three teachers to utilize the appropriate process to approve curriculum materials. i9 The Board also explained that "[ t] he administration advised the board of * * * the way in which it intended to handle the matter with the teachers given the terms of the policy. i10 The Board provided the closed session minutes for this office' s confidential review. The minutes, which comprise just two short paragraphs for a discussion that appears to have lasted approximately 48 minutes, indicate that the Board discussed the conduct and performance of two specific employees in closed session. While such a discussion of specific employees' work conduct and performance falls within the scope of section 2( c)( 1), the draft minutes contain little information about this portion of the Board' s discussion, and the Board failed to furnish a verbatim recording. Thus, while some if not all of this portion of the discussion may have been authorized by section 2( c)( 1), this office is unable to ascertain the extent to which the Board may have improperly discussed the contents of the book.

The Board also explained that:

Board members confirmed with the administration that there was an intent to reinforce with all teachers the need to follow the appropriate curriculum approval process. There was some conversation in closed session between administrators and board members about the parental complaints which lead to the discovery of failure of the teachers to follow district curriculum approval protocol by way of background to address the personnel matter. The administration explained that, going forward, teachers would be required to submit recommended curriculum to the Department Chair to have curriculum and books approved. At that stage in the process, the teachers are allowed to provide their reasoning for the recommended materials and then the Department Chair makes a recommendation to the administration for consideration and approval. ( Emphasis added.)["

This portion of the Board' s discussion clearly exceeded the scope of the section 2( c)( 1) exception by straying from a discussion of specific employees to broader matters involving all teachers and curriculum policy.

To remedy its improper discussion of matters in closed session, this office requests that the Board vote to make publicly available this portion of its closed session minutes from its April 20, 2022, meeting. This office also cautions the Board to limit its closed session discussion to the scope of the exceptions that it cites to close portions of its meetings in the future. Additionally, this office cautions the Board that it must make and keep verbatim recordings of all of its closed sessions, as well as closed session minutes that sufficiently summarize its " discussion on all matters proposed, deliberated, or decided[.]" 5 ILCS 120/ 2. 06( a)( 3) ( West 2021 Supp.).

Final Action Section 2( e) of OMA12 provides, in pertinent part, that "[ n] o final action may be taken at a closed meeting." While a public body may take a preliminary vote in a closed session, all final actions must be taken in an open meeting. Board ofEducation ofSpringfield School District No. 186 v. Attorney General ofIllinois, 2017 IL 120343, 173-74, 77 N.E.3d 625, 637 2017).

In its response to this office, the Board' s attorney stated that: " Contrary to the allegations raised in the Request to Review, at no time did the Board vote to ban the book Hey Kiddo from the school or the assignment. Board members also did not decide to ban the book from the school or the assignment outside the board meeting. i13 The Board' s attorney claimed that "[ t] he administration decided, before the board meeting, that families that had concerns about the book would be allowed to substitute a different book for the assignment if they chose. i14 The Board' s attorney further claimed that " a letter explaining the resolution of the issue to all of the parents of students in the classes that had selected the Hey, Kiddo book * * * In her reply, Ms. Fee contended that it was difficult to discern whether final action was taken. She stated: " The board has no audio evidence from the closed session to support their claim, due to the timing of the recording device 'failure' as well as the convenient absence of the content from the secondary recording device." 17 Ms. Fee attached a document to her reply labeled " FOIA Book Decision — Emails," which consists of a compilation of a -mails involving District personnel. In one e- mail to several teachers on April 21, 2022, Dunlap High School Principal Dr. Scott Adreon passed along a " message * * * from Matt Andrews[,]" Assistant Superintendent of Curriculum, Instruction, & Human Resources, " resulting from last night' s Board meeting." 1 s In this message, Mr. Andrews mentioned parental concerns about Hey, Kiddo and another book, then directed that " neither book is to be used moving forward. i19 He also specified a new procedure that teachers must follow to obtain approval for any new texts. In another e- mail on April 22, 2022, Dr. Adreon responded to a parent's April 19, 2022, e- mail complaint about Hey, Kiddo, by advising: " we are currently working through the process of pulling a couple of books out of our curriculum, Hey Kiddo is one of them. i20 Ms. Fee alleged that " processes/ policies were revised as part of the resolution of this matter. i21 The April 20, 2022, closed session minutes do not state that the Board decided to ban the book Hey, Kiddo. Dr. Adreon' s April 21, 2022, e- mail to teachers, however, reflects that District administrators ended the District's use ofthe book as a result of the Board meeting. The closed session minutes do document that the Board unanimously agreed on a new procedure related to curriculum in closed session and issued a directive to the Board to implement it. Additionally, the communications this office reviewed from before and after the meeting suggest that the Board decided on and began to implement such a change during the closed session without following up with action on that change in open session. When a public body finalizes action such as a policy change, that final action must be taken openly. See Howe v. Retirement Board of Firemen' s Annuity & Benefit Fund ofChicago, 2013 IL App ( 1st) 122446, ¶ 26, 996 N. E. 2d 664, 974- 75 ( 2013) ( finding board' s written denial of benefits invalid because the board had circulated the decision for signatures privately rather than voting on it in open session).

E- mail from Stacia Fee to [ Steven] Silverman ( June 21, 2022) ( referencing the Board' s assertion that after the recording device failed, the Board Secretary used her personal phone to record the discussion, but her phone failed too before the discussion in question).

18E- mail from Scott Adreon, Ed. D, Principal, Dunlap High School, to Leah Aeschliman, Julia Mackel, and Davina Frazier (April 21, 2022).