Really?

The exception to the OMA clearly states PENDING litigation, not decided litigation.  The Appellate Court did not find Error, Remand, Modify or Reverse the Circuit Court’s decision; it Affirmed.  So is the board weighing whether to waste even more tax dollars in appealing to the Illinois Supreme Court?  Or file a different appeal?

(2) “Litigation, when an action against, affecting, or on behalf of the particular public body has been filed and is pending in a court or administrative tribunal, or when the public body finds that such an action is probable or imminent, in which case the basis for the finding shall be recorded and entered into the minutes of the closed meeting.” 5 ILCS 120/2(c)(11). [Note: This exception operates to bring back under the Act certain gatherings which were excepted by the Appellate Court in People ex rel. Hopf v. Barger, 30 Ill. App. 3d 525 (Second Dist. 1975). The exception does not authorize the closing of a meeting merely because an attorney is present and/or legal issues are to be discussed. Litigation must be probable, imminent or pending before the exception can be used. The term "litigation" does not encompass deliberations of a public body acting in a quasi-judicial capacity on matters before it for decision. See 1983 Ill. Att'y Gen. Op. 10; but see 5 ILCS 120/2(c)(4). The phrase "probable or imminent" means "likely to occur." See 1983 Ill. Att'y Gen. Op. 82.]

Emphasis are mine.

As far as adequacy of a motion to go into closed session over litigation?  From the Illinois Association of School Boards website, citation of this case as an example:

Henry v. Anderson (v. Champaign Community Unit School District No. 4), 827 N.E.2d 522 (Ill.App.4, 4-18-05).

The second meeting being scrutinized violated the Open Meetings Act because the reason given for going into closed session – “litigation” – was not supported by required information. Said the court: “The ‘litigation’ exception is a forked path. If the litigation has been filed and is pending, the public body need only announce that in the proposed closed meeting, it will discuss litigation that has been filed and is pending. If the litigation has not yet been filed, the public body must (1) find that the litigation is probable or imminent and (2) record and enter into the minutes the basis for that finding. Evidently, the legislature intended to prevent public bodies from using the distant possibility of litigation as a pretext for closing their meetings to the public.” The court remanded the case to the trial court for a remedy determination.

Again, emphasis mine.

Woodridge has said their legal bills topped $800,000.  D99 so far has been mum on the total legal costs.

FOIA request e-filed Tuesday August 3

I filed an email FOIA request for a listing of the legal invoices (just the list and amounts, not copies of each bill), and have yet to hear anything back even though state law requires some sort of response within 5 business days.  Note the time stamp on the reply.

Acknowledged and ignored. Business as usual.

I guess today is technically the fifth day if you ignore the day it was sent, so I could still get a response…or maybe they can’t give that complete listing because they’re not done running up the legal bills, which some have estimated at over $1,000,000 and climbing.

Might be less than that, might be more.  We’ll see, but right now it looks like each member of the Gang 0f Five have cost D99 taxpayers $360,000 each; a possible $1.8 million dollars, not one dime of which was spent on anything to do with education.

Remember that come election time.

UPDATE: DGreport reader Dan Slayden and two other attorneys who choose not to comment publicly mention the decision has a 30 day period before being final.  Tonight the D99 BOE chose to accept that decision.

The letter from Assistant Attorney General Amanda Lundeen, dated Nov. 10, 2009, asked for a written response within 30 days to a complaint from the Reporter alleging that the board had gone into closed session on April 27, 2009, to discuss the impact of the district nepotism policy on newly elected member Deborah Boyle — a meeting the Reporter alleges exceeded the scope of the exceptions allowed under the Open Meetings Act.

The AG’s letter arrived at D99 offices on Nov. 18 and was immediately referred to Todd Faulkner, the board’s attorney, said Supt. Mark McDonald.

“He indicated to me that he would review the letter, perhaps contact the Attorney General’s office and draft a response for (Board President) Julia Beckman and/or me,” McDonald said in an e-mail. “It was the district’s intent to respond to the letter in the timelines offered.”

However, a timely response from Faulkner was not forthcoming and the matter fell through the cracks during the holidays. Further, the AG’s letter erroneously referenced a second meeting date, Sept. 27, 2009, which caused some confusion.

“I failed to be vigilant in terms of checking back with him during the days immediately following the receipt of the letter,” McDonald said. “I take responsibility for that.”

The AG’s office sent the district a second letter, dated Dec. 23, but that, too, fell through the cracks. It arrived during the Christmas break and, while McDonald was on the job, most of the central office staff was not.

“I did not review the incoming mail for the week,” McDonald said. “I did not see the second letter from the Attorney General until Jan. 4; the response was mailed on Jan. 5.”

In its response, which was signed by Beckman, the district said it “received and discussed its attorney’s advice on the application of the board’s nepotism policy to two employees and Deborah Boyle and related collective bargaining matters.”

In addition to the six school board members, McDonald, Faulkner and Assistant Superintendent for Student Learning Mary Biniewicz were present for the closed session, according to the letter.

In addition to the letter, D99 forwarded its Notice of Special Meeting for the April 27 meeting, its nepotism policy and its “Guidelines for Application of Nepotism Policy 2.100.” It did not furnish minutes from the closed session.

The district had  denied a May 5 FOIA request for those minutes from Mark Thoman, as well as his subsequent appeal.

The question now is whether the AG will accept the district’s response or request further information. Perhaps the minutes — or a recording thereof — could clarify once and for all what discussion took place in the meeting?

Elaine Johnson contributed to this story.

The reporter, Noreen S. Ahmed-Ullah, had previously covered the D99 board’s attempt to draft new nepotism guidelines that would block Boyle’s participation in closed-session deliberations concerning the teachers’ contract and benefits. Boyle’s brother is a D99 teacher and coach.

Yesterday’s story highlighted Chaplin’s repeated requests for receipts detailing $4,600 in office supplies purchased by the water commission in March and April 2008 and O’Connell’s ongoing attempt to get information about insurance benefit costs for district administrators, among other examples of officials who have been frustrated in their efforts to question the status quo.

Tactics outlined in the story  — requiring officials to file FOIA requests, censuring unruly members and erecting other obstacles to limit access to public records — may be less effective once a revised Freedom of Information law kicks in on Jan. 1 allowing the Illinois Attorney General to impose fines on public boards and commissions that “willingly and intentionally” deny access to such documents. The law also will reduce the allowed time frame for responding to FOIA requests from seven to five days.

If the examples outlined by Ahmed-Ullah are any indication,  the FOIA act overhaul shouldbe welcomed with open arms by advocates of government transparency and access.

What comes through over and over again in the story is the enthrenched belief,  on the part of  elected officials no less, that probing the activities of government and requesting access to public information is somehow wrong, bad or destructive to the fabric of the community.

Several of the quotes had a very familiar ring, for example:

“They’re trying to tell me what I can say and obstructing me from getting the documents I need to perform my duties as an elected official.”

“She’s been asking for more and more   documents and become distrusting of the administration. It starts to look like you’re micromanaging the place and looking to say ‘gotcha’.”

“As a board member, she’s entitled to receive information; that was not the problem. She was not following protocol in meetings and requesting information. She was going in on her own to the (district) office and disrupting their work.”

And another quote, from the executive director of the Citizen Advocacy Center in Elmhurst, which accurately summed up the local response to elected officials who don’t embrace the majority viewpoint:

“Inevitably, someone who is a concerned citizen ends up throwing their hat in the ring to run for public office to effect change. But in the last five years, we’ve been seeing a growing trend of public bodies taking action to squash out board members who are a political minority and make them as ineffective as possible. They may be on the board, but now they’re getting shut down.”

Perhaps it should come as no surprise that many of the clashes described in the Trib article concern school board members.  Long-time observers of the various local boards and commissions understand that school boards seem to operate under a different cultural standard — one heavily influenced by the tenets of the Illinois Association of School Boards, an interest group lacking statutory authority.

While respectful behavior,  a willingness to compromise and a constructive attitude are key traits for board members of every stripe, serving the public — its interests and concerns — is their first and foremost responsibility.

Commenting about the new FOIA law, which was drafted by her office, Illinois Attorney General Lisa Madigan said it would bring the quest for government transparency “out of the Stone Age.”

Given the amount of attention transparency has received locally in the past three years, it should be well past time for recalcitrant members of local boards to go along on that ride.

Transparency needed for public support of education

I write about your editorial, “Details of superintendent’s contract must be public” (May 13).

Sen. Dan Cronin, Rep. Sandra Pihos and I recently passed legislation to require school districts to post on the Internet every detail of school administrators’ contracts, including perks like cars, annuities, life insurance and expense accounts.

Transparency is key for the public to have confidence in our schools or government. SB 2270 is awaiting the governor’s signature and it will force Community Unit District 201 and all schools to disclose how tax dollars are spent on administrators.

State Sen. Kirk W. Dillard, R-24th District, of Hinsdale

SB 2270:

Amends the School Code. Requires school districts to post on their Internet website an itemized salary compensation report for every employee in the district holding an administrative certificate and working in that capacity, including the district superintendent. Sets forth what the salary compensation report must include. Requires the report to be presented at a regular school board meeting, subject to applicable notice requirements, and submitted to the office of the district’s regional superintendent of schools, which shall make copies available to any individual requesting them. With respect to a requirement that a school district post the contract that the school board enters into with an exclusive bargaining representative, requires the school board to provide the terms of that contract online. Effective immediately.

Passed both houses May 19th.  Local area State Senators Dan Cronin and Kirk Dillard, and House Representatives Sandra Pihos and Patti Bellock sponsored this bill.

The full text of the bill can be found here.

Last weekend I filed a Freedom of Information Request via email to CHSD99′s Board of Education regarding their Closed Session that began the April 27th School Board meeting.

The Illinois Freedom of Information Act and the Illinois Attorney General’s office (which publishes guidelines for both the FOIA and for the Illinois Open Meeting Act) both say discussions of public policy, in this case the board’s Nepotism Policy, must be held in Open Sessions.

Sun, May 3, 2009 at 9:40 AM

To: D99-Board@csd99.org

Cc: mmcdonald@csd99.org

Ms. Julia Beckman

President, CHSD99 Board of Education

Via email

5/3/09

Dear Ms. Beckman,

This is a request for public records under the Illinois Freedom of Information Act.

Please make available for my inspection by May 10, 2009 the following public records:

The verbatim minutes of the CHSD99 Board of Education Closed Session meeting held April 27^th, 2009 that specifically addresses discussion and possible decisions made regarding Board Policy 2.100 Nepotism.

Discussion in a closed meeting is limited to matters covered by the exception specified in the vote to close.  There is no citation to discuss public board policy 2.100 Nepotism in Closed Session made in the April 27th, 2009 agenda.  It is my understanding that part of this Closed Session discussed two employees.  I do not wish to view that information, as personnel matters are fair subject for Closed Session, and are cited in the April 27th, 2009 agenda.

If for any reason you feel any information or record requested is exempt from public scrutiny, please provide that portion of this request not in dispute, specifically the discussion of public policy by the board that is required to be held in Open Session by the Illinois Open Meetings Act.  For those employment portions that qualify as exempt, please redact the information.  If you choose to deny this request, please provide a written explanation of its specific nature and the specific statutory authority under which you are withholding this request for verbatim minutes directly related to the discussion of public policy.

As this is a request to inspect public records, Illinois law allows no fees to be charged. In the event I need copies of the public records, I understand I can be charged only for the actual cost of the copies, and not for any staff time involved. As this request is made in my capacity as a taxpaying resident of CHSD99, the disclosure of these records is in the public interest and therefore I request a waiver of any copy fees.

Please feel free to contact me at this email address should you have any questions, problems or concerns regarding the scope or nature of this request. I am happy to discuss, hone or reasonably alter this request for expediency.

Thank you for your prompt attention to this matter.

Best regards,
Mark Thoman
markthoman@gmail.com

I copied the entire board as well as Dr. Mark McDonald, 99 Superintendent.  On Monday I got a prompt and courteous reply from 99 Super McDonald that 99 accepts written requests via mail or in writing, so I printed it out and mailed it off Monday.

In Wednesday’s May 6th print edition of the Reporter/Progress newspaper, page 9 featured an uncredited opinion (generally meaning the paper’s Editorial Board approved it as a paper position) “D99 skirts around legal boundary”.  They noticed the same thing I did, that Board President Beckman said they had discussed the Nepotism Policy in Closed Session, and concluded:

“Regardless, any talk of district policy cannot be cloaked under personnel issues.  Board members violated the law, and they should give the details of their discussion.”

By law, they have up to 10 days to reply.  I will be posting that reply here.

“Transparency and the rule of law will be the touchstones,” he promised, shortly before signing several new executive orders, two of which were specifically designed to increase access to government information.

Read the rest here.