Tuesday, November 13th, 2018

A Public Body May Not Discuss Duties of an Elected Official in Closed Session When It Cannot Remove that Official from Office

In October, the Office of the Attorney General’s Public Access Counselor (PAC) published Public Access Opinion 18-015 in which it stated its position that the 2(c)(1) exception of the Illinois Open Meetings Act (OMA) authorizing closed session to discuss “[t]he appointment, employment, compensation, discipline, performance, or dismissal of specific employees of the public body” does not apply to elected officials. Furthermore, the 2(c)(3) exception of OMA authorizing closed session to discuss “the discipline, performance or removal of the occupant of a public office” only applies when the public body has the power under the law to remove the occupant of that office.

The PAC opinion arose from a request for review from the McClean County Auditor complaining that the Finance Committee of the McClean County Board improperly entered closed session during its June 6, 2018, meeting, citing the exception in 2(c)(1) of OMA, to discuss the duties and salaries of the county auditor and the county coroner.

First, the PAC determined that the holders of the elected public offices of county auditor and county coroner are not employees under the definitions of “public offices” and “employee” in section 2(d) of OMA. To reach this determination, the PAC noted that an individual cannot simultaneously be both a public officer and an employee of a public body. The offices in question were created under the Illinois Constitution of 1970, and the occupant of the offices hold some portion of the sovereign power of the State. They are therefore public officers. Furthermore, the PAC explained that neither does the county hold an employer-employee relationship with the county auditor and county coroner under common law. While the county may set the compensation for these county officers and determine the budgets of their offices, it may not direct and control their work nor may it terminate them based on their performance. Because the county auditor and county coroner are not employees, the 2(c)(1) exception does not apply to them.

Next, the PAC determined that neither does the 2(c)(3) exception apply to the public officers in question. The plain language of this exception allows for closed session to discuss the performance of county officials only if the public body has the authority to remove the officials under law or ordinance. The McClean County Board’s Finance Committee possessed no such authority.
Accordingly, the PAC ordered the release of the applicable closed session minutes and verbatim recording from the June 6 meeting.

This opinion serves as a reminder that closed sessions may only be used to discuss employment matters relating to specific individuals who are clearly employees of the public body in question. Closed session may not be used to discuss public officials the public body has no legal authority to remove from office.


David W. McArdle

Author: David McArdle, Matt Marcellis