FEATURE ARTICLE

8 Easy Ways to
"Keep Out of Jail"

Even telephone conversations between board members
can violate the Illinois Open Meetings Act

BY JAMES D. WASCHER

Compliance with the Open Meetings Act is especially challenging because the General Assembly has Amended the Act live limes in the past three years and because court decisions regularly refine its meaning.

The Open Meetings Act is like an 800-pound gorilla in your bedroom: you know it's there, but you're not exactly sure what to do with it, and the wrong choice could be disastrous.

Violation of the Open Meetings Act can invalidate final action by the governing board of a park or forest preserve district, expose the district to legal liability, and, in extreme cases, can even result in a fine or jail sentence against individual commissioners.

Compliance with the Open Meetings Act is especially challenging because the General Assembly has amended the Act five times in the past three years and because court decisions regularly refine its meaning.

One long-time park district director likes to say, only half in jest, that all he wants the district's attorney to do is to "Just keep me out of jail." Park and forest preserve district board members can stay out of jail, and avoid the other penalties imposed by the Open Meetings Act, by following eight easy rules.

1 Tell the public when you're meeting

The Open Meetings Act requires every park and forest preserve district to post a public notice of the regular dates, times and places of its governing board meetings at the beginning of each fiscal or calendar year. The notice must be posted at the district's principal office, or, if it does not have one, at the building where the meetings are to be held. In addition, the district must send the schedule of its regular meeting dates, times, and places to any news medium that has filed an annual request for notice.

Since 1994, the Open Meetings Act also has required park and forest preserve districts to post the agenda for their governing board meetings at least 48 hours prior to each meeting at the district's principal office and at the building where the meeting is to be held. However, the Act allows a governing board to consider matters not specifically listed on its meeting agenda.

If a park or forest preserve district board wishes to hold a special meeting, it must post notice and an agenda of the meeting at least 48 hours in advance, unless there is a genuine emergency. The district must post notice and an agenda of an emergency meeting as soon as practicable before the meeting. In either case, the district also must give notice of the special meeting to the news media in the same manner as is given to the members of its governing board.

2 Hold closed sessions only for the right reasons

The Open Meetings Act requires park and forest preserve district boards to conduct the vast majority of their business in open session. Closed sessions are allowed only for the reasons that are specifically listed in the Act, which include discussion of:

• Personnel matters, including the "appointment, employment, compensation, discipline, performance or dismissal of specific employees of the public body," as well as collective bargaining negotiations and salary schedules for groups of employees. Reversing prior case law, the General Assembly amended the Open Meetings Act in 1994 to provide that this exception does not apply to decisions involving the employment of independent contractors, including architects, attorneys,

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FEATURE ARTICLE

The Attorney General has declared that the Open Meetings Act does not apply to "chance encounters and social gatherings" of governing board members, but does apply to telephone conversations to discuss public business.

engineers, and construction contractors, which therefore may be discussed only in open session.

• The appointment of a commissioner to fill a vacancy on the board. This exception does not apply to the appointment of the secretary or treasurer of the district.

• The purchase or lease of property by the district, including discussion of whether the district should acquire a particular parcel.

• The setting of a price for the sale or lease of property owned by the district. This exception does not permit discussion in dosed session concerning whether to declare district property as surplus and to authorize its sale.

• Pending, probable or imminent litigation by or against the district. If litigation has not already been filed, the board must find that legal action is probable or imminent and must record the basis for this finding in the minutes of the closed meeting. This exception does not apply simply because an attorney is present at the board meeting, even if the attorney gives legal advice to the board during the meeting, unless that advice relates to litigation that is already on file or likely to occur.

• Minutes of prior closed sessions of the board.

The Act requires the courts to construe the foregoing exceptions narrowly. The Open Meetings Act clearly does not permit a park or forest preserve district board to hold a closed meeting to discuss matters that may be politically sensitive (e.g., whether to hold a referendum for a tax rate increase or a bond issue), embarrassing (e.g., the possible conflict of interest of a board member), or that the board simply wishes to keep confidential, unless a specific exception to the Act applies.

3 Go into and out of closed session the right way

The Open Meetings Act permits a park or forest preserve district board to hold a closed session even if the posted agenda for that meeting does not disclose that a closed session will be held. In order to hold a closed session, a governing board must first convene an open meeting, at which a motion to go into closed session must be made and approved by roll call vote. The motion must cite the specific Open Meetings Act section or sections that permit the closing of the meeting to the public. The motion and vote must be recorded in the minutes of the board's open meeting. Suggested language for the motion to close a board meeting is contained in a sidebar to this article on page 21.

Under the Open Meetings Act, "[o]nly topics specified in the vote to dose... may be considered during the closed meeting." Therefore, if a governing board decides that it must discuss additional topics in closed session, it must first go back into open session, and then adopt another motion to dose the meeting, citing the appropriate provision of the Act that permits a closed session for the new purpose intended.

A park or forest preserve district board may not take any final action in closed session. For example, if the board reaches consensus during a closed meeting to hire a new director, to initiate a lawsuit or to purchase a parcel of property, it must return to open session, and then vote upon the appropriate action. In addition, before taking final action in open session, the board must disclose "the nature of the matter being considered and other information that will inform the public of the business being conducted." If a governing board takes no final action relating to a matter discussed in closed session, the presiding officer simply should report upon the resumption of the board's open meeting that a dosed session was held to discuss a particular matter, and that no final action was taken.

4 Keep proper minutes

The Open Meetings Act requires the governing board of a park or forest preserve district to keep written minutes of both its open and closed meetings. These minutes must indude the date, time, and place of the meeting, a record of the members of the board who were present and absent, a summary of the discussion on any matter "proposed, deliberated, or decided, and a record of any votes taken." Prior to 1994, the Act only required minutes to include a "general description" of me matters discussed.

5 Avoid secret ballots

According to both an Appellate Court ruling and an Illinois Attorney General opinion, a park or forest preserve district board may not take a secret ballot on any matter. This includes voting to select board officers.

6 Review your closed session minutes at least twice a year

The Open Meetings Act requires park and forest preserve district boards to meet at least twice a year to review the minutes of all prior dosed meetings. During this review, which may take place in dosed session, the board must determine whether the need for confidentiality still exists with regard to all or part of the minutes, or whether all or part of the minutes no longer require confidential treatment and therefore should be made available for public inspection.

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8 EASY WAYS TO KEEP OUT OF JAIL

The Act requires the board to report its determinations in open session.

7 Follow the same rules for committee meetings

The Open Meetings Act applies not only to park and forest preserve district governing boards, but also to all committees and other "subsidiary bodies" of the board. Therefore, a committee must follow the same rules as the full board regarding meeting notices, holding closed sessions, keeping minutes, etc. It is also important to remember that the Open Meetings Act applies whenever the majority of a quorum of a board or committee gathers with "an intent to discuss public business,"

Two commissioners constitute a majority of a quorum on a five-member board, or on a committee with five or fewer members. A member of such a board or committee therefore should avoid discussing official business, either in person or by telephone, with even one other board or committee member. The Attorney General has declared that the Open Meetings Act does not apply to "chance encounters and social gatherings" of governing board members, but does apply to telephone conversations to discuss public business.

8 "If at first you don't succeed..."

The courts agree that even if a park or forest preserve district board takes final action in violation of the Open Meetings Act, it may cure the violation by "taking identical action" at a subsequent meeting noticed and conducted "in full compliance with the requirements of the act."

The Attorney General's office has published a pocket sized Guide to the Illinois Open Meetings Act, which contains both the text of the Act and an analysis of its provisions. Each commissioner and director should have a copy for ready reference.

As expressed in the Open Meetings Act, the public policy of the state of Illinois is "to ensure that the actions of public bodies be taken openly and that their deliberations be conducted openly." Commissioners wishing to "keep out of jail" should always remember this policy, and should resolve any doubts in favor of meeting openly, with adequate prior notice to the public of the purposes of the meeting.

JAMES D. WASCHER
is an attorney with the law firm of Friedmon & Haltz, PC., which is general counsel to 14 park districts in the Chicago metropolitan area.

For a copy of the pocket-sized Guide to the Illinois Open Meetings Act, contact the Office of the Attorney General, 500 S. Second Street. Springfield, IL 62706, 217.782.1090.

Closed Session Lingo Before going into closed session: Board member. "I move to close this meeting/to go into closed session' [CHOOSE ONE] for the purpose(s) of the board discussing: • the appointment, employment, compensation, discipline, performance or dismissal [CHOOSE ONE] of an employee Section 2(c)(1) • salary schedules for one or more classes of employees Section 2(c)(2) • the filling of a vacancy on the board Section 2(c)(3) • the purchase or lease of real property Section 2(c)(5) • setting of a price for sale of real estate Section 2(c)(6) • pending/probable [CHOOSE ONE] litigation affecting the park district Section 2(c)(11) • minutes of dosed sessions, either for approval or for semi-annual review Section 2(c)(21) pursuant to Section 2(c)___ [SEE ABOVE] of the Illinois Open Meeting Act." [ROLL CALL VOTE FOLLOWS.] After coming out of closed session: President: "The board met in closed session for the purpose(s) of discussing__________________ [REPEAT PURPOSE(S) GIVEN IN MOTION ABOVE]. The board took no action on this matter/these matters." [IF ACTION WAS DECIDED UPON, IT SHOULD BE DESCRIBED, MOVED, SECONDED, AND VOTED UPON IN PUBLIC SESSION.] —James D. Wascher

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