Wednesday, April 16th, 2014

New PAC Open Meetings Act Opinion

In its first binding opinion of the year, the PAC has revisited an earlier problematic decision and has, perhaps, made things even more difficult for public bodies.  As we previously reported, the Public Access Counselor (“PAC”) issued an opinion in 2013 involving the Springfield Public School District No. 186 (PAC Opinions 13-007).  In executive session, the board members had agreed upon and affixed their signatures (but not the dates) to a termination document for their Superintendent.  They then voted to approve that document in open session after public notice had been given.  The PAC found a violation of the Open Meetings Act (“OMA”) concluding that the board took final action in closed session. In contrast, a Sangamon County judge rejected the PAC’s analysis and found that there had not been an OMA violation since the final action approving the contract was taken in public session.  However, the court sent the issue back to the PAC to allow it to determine if that final action in open session was preceded by information sufficient to inform the public of the nature of the business being done before the board voted to approve the separation agreement as required by the OMA.

Unfortunately for public bodies around the state, the PAC has now concluded that the school district’s actions — posting the agenda item on the agenda and making the contract available to the public but then only reciting the subject matter prior to the vote — did not satisfy the OMA requirements.

Section 2(e) of the OMA requires that any final action must first 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.”  The board presented evidence that the separation agreement was identified by the board prior to the vote and that the item was included on the board’s agenda.  However, the board did not publicly discuss the specific terms of the agreement (including a substantial lump sum payment to the Superintendent) at the meeting.  However, the school board had provided a copy of the agreement on its website along with the agenda of the meeting and so the board took the position that this combination of published agenda and public recital were sufficient to inform the public of the matter being considered.

The PAC rejected this argument concluding that any OMA requirements related to publication of an agenda before a meeting (under Section 2.02) had nothing to do the Section 2(e) provisions governing public recital during the meeting.  The PAC concluded that the Section 2(e) requirement must mean that the public body is required to give an oral explanation of “the significance of its action” to any of the public who attend the meeting before it takes action.  The PAC reasoned that the OMA’s Section 2.02 agenda publication requirements must give the public enough information to decide if they want to attend a meeting while the section 2(e) public recital requirements are different and are intended to ensure that the public body provides enough information to inform those who do attend the meeting of what business is being conducted.  According to the PAC “the public must be informed of the key terms of a proposed public contract or agreement.”[1]

The PAC rejected the school district’s argument that reciting key terms would slow the public’s business to a snail’s pace by requiring that the entire contract be read at the meeting, stating that no verbatim reading is required but that the public must be provided with a summary of the “pertinent terms” of the agreement to inform the public of the business being conducted.

This opinion creates all sorts of unnecessary confusion for local government.  It creates new burdensome meeting recital requirements without offering guidelines on what are “pertinent” or “key” contract terms that must be publicly recited in a meeting.  Moreover, if followed, this opinion would render invalid the statutorily authorized practice of voting on consent agenda items without individual consideration of each item.

Perhaps most troubling is the underlying assumption of this opinion that there is no connection between the published agenda (which in this case included a copy of the contract to be considered) and the notion that the public at the meeting could not know what was being discussed when the contract was identified at the meeting.  This assumes the public cannot read a publicly available document and that the public must be spoon fed the same information verbally at the meeting because there is no connection between the information provided in an agenda or public meeting packet and the content of a public meeting.   It disregards the fact that considerable legwork, study and education is required of board members — and sometimes the general public as well — in advance of public meetings.  Government operations are often complex and multifaceted and as any elected official can verify a great deal of preparation is often required in advance of a vote in order to understand the issues involved.  In this case, the contract was available to the public before the meeting and the suggestion that absent a thorough description of its terms at the meeting the public could not know what was being considered seems to disregard the reality of complex, 21st-century governance and communication.  Perhaps a better solution would be to consider that there is a link between an agenda and information available to the public for review.  As technology makes it easier to post and publish information in advance of meetings, when the public has access to material in forums besides a public meeting, it seems somewhat unnecessary to also require a detailed verbal recital of the content of those agreements at public meetings.  And in the interim, if such a recital is required, then the PAC must provide clear guidelines regarding what sort of recital will be sufficient.

[1] Interestingly, the PAC makes no mention of whether a public body must give such an explanation if the room is empty of public members or how this rule would apply when meetings are taped or broadcast live in real time but presumably the PAC would extend its reasoning not just to the public in the room in “real time,” but to the public anywhere and anytime particularly if they had access to the meeting recording.

Ruth Alderman Schlossberg

Author: Ruth A. Schlossberg