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Illinois School Board Journal
March/April 2007

Watchdogs:
School board's best friends or foes?
by Ginger Wheeler

Ginger Wheeler is a freelance writer from Glen Ellyn, Illinois, whose work has appeared regularly in The Illinois School Board Journal.

In Washington, the saying goes, if you want a friend — get a dog. For Illinois school board members, the saying could be: You already have a friend, whether you know it or not — The Watchdog.

But who are these watchdogs? What can school board members expect from them? And how should school board members behave around them?

Watchdogs come in all guises, shapes and voices. Watchdogs are school board members' friends, neighbors and constituents. They are citizens and parent groups. They are taxpayers, employees and customers of the district. They are newspaper reporters, broadcasters and bloggers.

Watchdogs are the public who have a role to play, and often a special interest, in the governing process of a democracy for it to work as planned.

Even Illinois school children are required to understand the role watchdogs play in the political system, according to Standard 14-D of the Illinois Learning Standards.

That vigilant role, however, often puts watchdogs at odds with those they are watching, especially when boards, wary of what the public might think of an issue, are tempted to gloss over the facts or try to discuss and come to consensus about an issue outside their board venue. Under the Illinois Open Meetings Act and the Freedom of Information Act, that should not occur. Public business should be conducted in a public forum.

It seems simple, yet in 2005 more than 1,000 complaints and concerns were filed with Illinois' Attorney General Lisa Madigan's newly created division of Public Access and Opinions.

In its first report for the division, the attorney general cited several school boards for violations of both the Open Meetings Act and FOIA.

A school district in IASB's Two Rivers Division was mentioned in the report for attempting to charge $400 for public records requested by a "union member." The document had been provided by an architectural firm, at the school district's request, presumably with a fee attached. But, governmental bodies can only recoup actual reproduction costs from a FOIA request, not staff or vendor time.

A district in the Southwest Division was mentioned for claiming the contents of a contract it had entered into with a bus company were trade secrets, with proprietary and confidential information included. Not so, said the attorney general, and the FOIA request was honored.

A Corn Belt Division district was cited for taking a vote in executive session. Voting in executive session is strictly prohibited, so the board had to rescind the vote and vote again during a public meeting.

School districts are not like movie stars who crave publicity, whether it's good or bad. For a school district, bad publicity is just plain bad and can have very strong repercussions in years to come if public perception is adversely affected.

A quick Internet search on Open Meetings Act violations covered by the Chicago Tribune brings up the names of a number of suburban Chicago districts. Dig a little deeper for newspaper articles and Web logs (blogs) and other names pop up. Reasons included alleged illegal hiring practices, questionable loan deals, failure to adequately post meeting agendas, failure to release public information, unauthorized land purchases and scrutiny of private e-mails between board members.

Assuming that no sinister activity actually occurred and that the intentions of these well meaning school boards were only in the best interests of their district, what's a school board member to do to get along with these watchdogs?

Start by following the intent and letter of the Illinois Open Meetings Act and the Freedom of Information Act, said David Bennett, executive director of the Illinois Press Association.

"School boards are actually better at following the rules than other governing bodies in Illinois," Bennett said, "probably because of the nature of their work of serving children and providing education.

"The best thing school boards can do is to be as transparent as possible," he said. "Executive session meetings are our biggest problem but the law is clear: No votes can occur behind closed doors and the law is very clear about what can and can't be discussed."

Champaign attorney Brian Braun, who has worked with school law and school boards for the past 40 years, says he's reluctant to talk behind closed doors and likes people to hear what he has to say. "Some things have to be in closed session," he added, "but a lot of things done there could be done in the open. I think boards go into closed session way too often."

While "personnel issues" are an allowable topic and consume a big part of school board closed session discussions, one example — not from education — reveals that bending the definition can get a board in trouble. As an example, an Illinois police department attempted to eliminate a canine unit, claiming it was a "personnel issue." According to the rules, it isn't.

And if a rule has been violated, it's better to acknowledge that violation, according to Braun. "If you've made a mistake, the better procedure is to accept responsibility," Braun said. "Nobody ever came out of a situation better by trying to hide wrongdoing or blame others. Find a course correction rather than explaining or hiding."

He added this advice for school board members who are talking with the media or any watchdog group: "Only say what you want to see in print. Reporters are not obligated to quote every word you say. The reporter has the ability to report pieces of what you say. So it's a good idea to have prepared comments ready rather than speaking off the cuff when a particularly sensitive situation presents itself."

To be fair, watchdogs can be overzealous, overly suspicious, and cause boards and administrators undue hardships and stress. Self-appointed watchdogs who use blogs can turn nasty and personal, attacking named school board members and anonymously hurling accusations that may or may not have merit.

"I know we have First Amendment rights," said Sandra Pihos, a former teacher, school board member and board president who is now an Illinois state representative, "but there's also a responsibility when you level accusations at (elected officials) to be responsible."

"People hide behind the blog," she said. "I would never respond to a blog, but I would invite those people who have concerns to sit down and talk with me on a personal level. Sometimes people will read about a vote and be angry. But they might not have all the facts.

"When they learn more about the reason and facts behind a vote," Pihos said, "most often people are very reasonable."

Another school board member who had been the subject of vicious anonymous personal blog attacks said that the only recourse was to ignore the comments. "It's a very uncomfortable feeling and was very upsetting," said this board member, who wished to remain nameless. "In (bloggers') minds, they have unbelievable power when they can post such (anonymous) writing. It's a form of cyber bullying."

Additionally, citizens are entitled to have access to public files, within reason. "The (Freedom of Information) Act is not designed to interrupt the duly undertaken tasks of a public body," wrote the state's attorney general in response to a citizen's requests covering several hundred documents from a library board over the course of a few months.

One suburban Chicago anti-tax referendum activist, who had been allowed liberal access to personnel and files, became so bothersome to administration offices that a judge issued a restraining order against the citizen.

The restraining order was a result of abusive language and other improper behavior, according to a source familiar with the case, not in response to the access requests. The order did not infringe on the citizen's right to attend and videotape every public meeting of the school board, as allowed under the Open Meetings Act. This watchdog's move prompted the board to resume its own broadcast on a local cable channel, which had been cancelled some years earlier due to equipment and personnel issues.

Things don't have to be contentious between board members and the public trying to keep an eye on them. Laurence J. Msall, president of Chicago's Civic Federation, said his group watches all types of taxing bodies, including schools. The organization's self-defined role is as "a non-partisan supporter of rational tax policy, fiscal reform and increased government efficiency."

The Civic Federation made headlines recently by sounding an alarm when the Chicago Public Schools made their intentions public about planned capital improvements.

"There was a $1 billion five-year plan, but no details," Msall said. "They didn't make clear what the assessments and needs were, what the money was going to be spent on, and why or why not."

After hearing from the Civic Federation, CPS' financial officers eventually did provide more details on the spending plan and ultimately the plan was approved by the organization, Msall said.

School boards should make public information available in a timely fashion, he said, before decisions are made, in order to provide planning time.

"We are here to make sure the taxpayer's money is well spent," Msall said. "Boards need to show transparency, and share with the public which projects will be started or won't be done until the funds are available."

The Press Association's Bennett said proposed changes to the Open Meetings Act and subsequent passage of SB1586 in 2003 were among the most contentious issues he experienced in 20 years on the job.

After years of attempts to strengthen the 1950s-era Open Meetings Act, a bill sponsored by then-Illinois State Senator Barack Obama succeeded in making changes. The new law affects executive session rules and requires that electronic recordings be made of closed-door meetings, in addition to keeping minutes. Should a controversy arise, an Illinois judge can listen to the recording to determine if the closed session violated any provisions of the Open Meetings Act, or whether any private information should be masked from public scrutiny.

"We have been instrumental in getting laws passed that strengthen the Freedom of Information and Open Meetings Acts," Bennett said. "We repeatedly try to make those laws as strong as possible. When there are problems with compliance, we have to go to the General Assembly and ask them to pass laws that correct some compliance issues. We do that in part for our own interests but also to help make the (governmental) process work better."

Groups representing every governmental body opposed the changes as cumbersome, expensive and time consuming, according to Bennett.

The changes took 10 years to pass and were once vetoed by then-Governor George Ryan, who wrote: "Numerous local officials and units of local government have expressed their concerns and questions regarding this legislation. One concern is that enactment of this legislation would cause an undue financial burden on public bodies because they would have to invest considerable time and additional resources to meet this mandate … . While I believe that local governments should provide this information of their own volition, I do not believe that the State should mandate it."

Since the law went into effect, watchdog groups have convinced Illinois judges to recall executive session tapes for further scrutiny in at least three instances.

"My advice to school boards is to routinely review their own policies, practices and attitudes about open government laws and to do everything they can to be as transparent as possible," Bennett said. "They have to balance their role as stewards of the money and the programs with that of representing the people who voted for them."

That's good advice, according to watchdog groups consulted for this article, especially because the Acts can be subject to different interpretations: What constitutes a "meeting?" What is considered a "convenient" meeting place? How much time should be allowed for activists and watchdogs to weigh in on pending decisions by the board?

While some boards have attorneys present at their meetings, it's not necessarily the attorney's job to point out whether a closed session is appropriate or not or whether any other provisions of the Open Meetings Act or other statutes have been violated, Braun said.

He described a situation where he was invited to a board meeting to talk about a teacher disciplinary case. While there, he witnessed the board chairman asking for a prayer before starting the meeting … an act that, as demonstrated in case law, is unconstitutional. But with no one to challenge the prayer in the district, "I'm not going to stand up and point out to the board that what they're doing is unconstitutional, even though it is," Braun said. "That's not what I was invited there to do."

If a board wants its attorney to alert them to potential improprieties, he said, then the board needs to make it clear that such a role is expected. Even though the attorney may be an employee of the board, "the lawyer wouldn't volunteer what he wasn't asked," Braun said.

If a board member suspects an Open Meetings Act violation, Braun said, that board member needs to gather as much information as possible by asking questions and doing a thorough investigation first. "Some new board members make mistakes because they jump to conclusions before they have full information," he said. "It's a good idea to convince a couple of the other board members to see your side as well."

Many school board members are grateful for the changes to the law, grateful that watchdogs have been given some teeth. Peoria SD 150 board member Alicia Butler said she, for one, appreciates input from the public and, in turn, tries to provide as much information as possible.

"It's not just about us. It involves the whole community," Butler said. "As the largest school system in the area, how this system goes, the health of our city goes, and vice versa. That's the kind of major impact on the city a school district can have."

That the General Assembly spells out the rules gives some school boards the ammunition they crave to be as accountable as possible to their constituents: it's the law.

The irony, of course, is that the General Assembly exempted themselves and their committees from the laws they passed for every other governmental body to follow, said Bennett.

That leaves watchdogs with something to sink their teeth into for years to come.