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Illinois School Board Journal - ARCHIVES
January-February, 2001
ASK THE STAFF:
Straying from agenda invites peril
This issue's question is addressed by IASB general counsel Melinda Selbee. You can contact Melinda at mailto:mselbee@iasb.com.
Question: During closed meetings, our board often delves into restricted topics, e.g., academic achievement, planning issues or the budget. Any ideas for me to gently, but effectively, keep the board to the announced closed meeting agenda?
Answer: I receive many questions from board members concerning closed meetings. Most often, I confirm what the board member suspected: the open meeting requirements are strictly construed against closed meetings. Occasionally, a board member calls alarmed that the board will not limit itself to discussion of items on the announced closed meeting agenda. A happy ending occurs when the board member is able to steer fellow members away from violating the Open Meetings Act without inflaming board relationships.
I find a progressively stern approach works best for accomplishing this goal. School board members generally have tremendous respect for the law and do not wish to violate it. Knowing this, a simple reminder is usually all that is needed:
"Doesn't everyone agree that we are restricted, by law, to the topics specified in our vote to hold this closed meeting? I'm having a hard time seeing how this issue falls within one of those topics. Plus, I'm very concerned that we are discussing an issue that is mpermissible for any closed meeting."
If the simple reminder does not work, I recommend warning fellow board members that Open Meetings Act violations have serious consequences. Something like this may work:
"Please remember that we are placing ourselves in peril if we discuss a nonexempt topic in closed session. If we disagree on whether the issue is exempt or not, let's stop our discussion until we have an attorney's opinion. Any person may bring a civil action complaining about noncompliance. If the court holds against us, it may grant such relief as it deems appropriate and we may be individually responsible for the plaintiff's attorney fees and litigation costs. It is a Class C misdemeanor for a board member to violate the Open Meetings Act. A fine up to $1,500 may be imposed on each of us, in addition to a sentence of imprisonment for not more than 30 days." (730 ICSA 5/5-8-3 and 5/5-9-1).
If the warning is ineffective at curbing discussion of a nonexempt topic, an objecting board member should leave the meeting. While this is a drastic measure, it is the only way to protect oneself against civil or criminal prosecution. Threatening to go straight to a reporter will guarantee bitter feelings from fellow board members, usually without accomplishing much. However, state law prohibits anyone from concealing knowledge that a criminal offense was committed (720 ILCS 5/31-5). I recommend telling fellow board members, as you leave the closed session:
"I am leaving this closed session because I believe we are posed to discuss a nonexempt topic. I'll be waiting in the hall, so please get me when you've finished discussing this topic. Illinois law prohibits anyone from concealing knowledge that a criminal offense was committed. Thus, I am duty-bound to inform the local state's attorney what happened here. However, if you discontinue discussing this issue, I'll stay in this meeting and will not disclose this conversation."
This progressively stern approach should accomplish two things: it should preserve positive board relationships while avoiding an Open Meetings Act violation.