Recent Court Decisions

A three-member Board of Trustees (Board) held a meeting where two of its members attended. Two members equal a quorum on this type of public body. The members who attended the meeting were Mr. Bertrand and Ms. Mallory. During the meeting, they went into closed session to discuss a proposed settlement agreement of a lawsuit against the Board, brought by Mr. Bertrand. When the closed session ended, Ms. Mallory moved for the Board to approve a settlement agreement with Mr. Bertrand. Mr. Bertrand seconded the motion. Ms. Mallory voted “yea,” and Mr. Bertrand abstained from voting. The Board considered the motion passed.

Community members sued the Board over this motion. Then, the Ill. Attorney General intervened (took over). It argued that the settlement agreement was void for two reasons: (1) Mr. Bertrand’s actions violated section 3(a) of the Public Officer Prohibited Activities Act (“Act”) because he participated in the negotiation of the settlement agreement, and (2) Ms. Mallory’s one yea vote out of a quorum of two members did not equal a majority to pass the motion for approval of the settlement agreement.

Agreeing with both arguments, the court held the settlement agreement was void. First, the court held that Mr. Bertrand had personal pecuniary interests that conflicted with his duty not to use his elected office for his own financial gain. Conflict of interest statutes are passed to “discourage this type of ethical dilemma and the abuses that stem from it.” Second, the court held that although the Board had a quorum and could legally hold a meeting with a quorum of two, one vote for the proposed settlement agreement was not enough to pass the motion. A majority means the number greater than half of any total. When an affirmative vote of yes is required (e.g., expenditures of money), then only an actual “yea” or “aye” vote is counted toward passage of the motion. Any abstention or attempt to vote other than “yea” or “aye”, including abstaining, operates as a “nay” vote. Mr. Bertrand’s abstention had the effect of a “nay” vote.

A school district placed a referendum on the ballot seeking to increase the school’s property tax limiting rate. The school district engaged in a number of activities to encourage voters to support the referendum, including hosting a student rally, producing a television program, mailing referendum literature, allowing teachers to blog on the subject, and providing school space to pro-referendum groups.

Although the referendum was defeated, Mr. Peraica and Taxpayers United of America (TUA) filed suit against the school district. The group claimed that the school district had deprived them of the right to free speech under the first amendment to the United States Constitution, because they were “forced to struggle against the public funds” in their opposition to the referendum. The taxpayer group alleged that the school deprived them of a constitutional right under the appearance of authority, in violation of section 1983 of the Civil Rights Act.

The Illinois Fourth Division appellate court agreed with the trial court’s dismissal of the claims in favor of the school district.

NOTE: Two of the group’s claims did not reach appeal:

1. Mr. Peraica and TUA had claimed that the school violated the Property Tax Code by understating the amount of the tax increase.

2. Mr. Peraica and TUA had alleged that the school violated section 9-25.1 of the Illinois Election Code, which says that schools cannot use public funds in support of a proposition. The court replied that claims under the Election Code are properly made to the Board of Elections.

Referendums are complicated and school officials should always consult the board attorney throughout the process.

Brennan McLoughlin, IASB Law Clerk

This appeal continues from the summer of 2012 when Roxana Comm. Unit School Dist. No. 1 (RCUSD) asked for and was granted an injunction against the Illinois Pollution Control Board (PCB).

The injunction ordered the PCB to (1) stop violating the OMA and (2) hold all of its future meetings in public. See Roxana CUSD #1 v. WRB Refining, LP and EPA, Pollution Control Board & Dept. of Revenue, Ill. App. 4th 120331 (2012) (available in RC&AD archives).

The injunction only stopped the PCB from violating OMA during further proceedings pertaining to the parties of this case. The question of whether or not the PCB violated FOIA and OMA was to occur at a later date.

At that later date, the PCB won its motion for summary judgment in the trial court. This decision effectively stopped a trial on the question of whether the PCB violated the Illinois FOIA and OMA. RCUSD appealed this decision.

The Illinois Appellate Court reversed and remanded the case (sent it back to the trial court). On appeal, the Appellate court found as follows:

1. The PCB violated FOIA by not providing public records requested as statutorily mandated.

2. The PCB violated the mandates and overarching purpose of the OMA when it improperly prohibited public comment, restricted opportunity to address it during public comment to written filings, and discussed the merits of RCUSD’s claims in closed sessions.

For another related appeal out of this situation, please see Roxana Community Unit School Dist. No. 1 v. Environmental Protection Agency, --- N.E.2d ---, 2013 IL App (4th) 120825 (November 14, 2013) (available in the RC&AD District Organization and Operation section).

The plaintiff, Roxana school district (district) was concerned about its tax revenue decreasing based upon certain certifications that the Pollution Control Board (PCB) was granting to the co-defendant WRB. The district alleged that another public body like itself, the PCB, and the other co-defendants violated the OMA when granting these certifications. But instead of writing to the public access counselor, the school district requested the court to issue a preliminary injunction (a court order to stop the PCB from holding closed meetings) under the OMA.

The court issued a preliminary injunction against the PCB, ordering it to (1) stop violating the OMA and (2) hold its future meetings “with WRB” in public. WRB appealed the order with two arguments. First, it argued that the preliminary injunction should not apply because the court did not follow the general rule of law that applies when a court issues a preliminary injunction. Specifically, WRB wanted the chance to dispute the school district’s allegations before the court ordered the preliminary injunction. Second, WRB argued that the order was too narrow because it only applied to meetings “with WRB” and the PCB, not “all” entities that appear before the PCB.

The court held that the language in the OMA creates an exception to the general rule of preliminary injunctions. That means the court had full authority to issue the preliminary injunction under the OMA without allowing WRB to dispute the school district’s allegations as it could under the general rule. However, the court did modify the order specific to WRB to “more closely comport with the equity and the intent of the OMA” by applying it to “all” entities’ business before the PCB.

This decision is a reminder to school officials that courts have authority to order them to hold their meetings in public and always follow the intent of the OMA. Violating a court order can sometimes lead to various contempt of court allegations. It is also an example that public bodies can allege violations against each other. For questions about your district’s specific OMA practices contact the board attorney.

A public body referred a FOIA requester to a responsive document without making the requested copy, stating that the document was available for inspection and review. This was not a sufficient response to the FOIA request, which requested a copy. FOIA requires public bodies to provide a copy on request.