Recent Court Decisions

The United States Court of Appeals for the Seventh Circuit (Court) dismissed a former teacher’s claim that she was given an “unsatisfactory” performance rating in retaliation for speech she engaged in while acting as the union’s representative, which she alleged violated her First Amendment free speech rights, but it remanded her case for further proceedings to determine if she was afforded Fourteenth Amendment due process rights.
 
Plaintiff Carolyn Mascow (Mascow) was a tenured teacher employed by Franklin Park School District No. 84 (the District) in 2017 when she was laid off. Her latest performance evaluation at the time was “unsatisfactory,” meaning she was first in line for layoff when the school lost one position and she was not eligible for recall if the school began hiring again, which it did. Mascow sued the District, alleging that she was given the “unsatisfactory” performance rating in retaliation for two positions she took when acting as union co-president, the first in the summer of 2014 and the second in the summer of 2015.
 
The district court, in reviewing Mascow’s First Amendment claim, held that a reasonable jury could not find that the 2014 and 2015 acts led to Mascow’s 2017 “unsatisfactory” performance rating. In so ruling, it pointed out that Mascow began serving as co-president in 2010, when she met with school officials often and initially had good performance ratings. Moreover, Mascow’s co-president (who was also involved in the 2015 matter) had received an “excellent” performance rating. As for Mascow’s Fourteenth Amendment claim, the district court found that even though Mascow had a property interest in her job, Illinois does not offer hearings to laid-off teachers. Because Mascow did not have a right to a hearing, it found that she did not have a property right either and lacked a constitutional claim.
 
Reviewing these facts and the district court’s decision, the Court agreed with the district court’s conclusion regarding the First Amendment claim. The Court, however, was not persuaded by the district court’s reasoning on the Fourteenth Amendment claim that if someone does not have a State right to a hearing then it “knocks out” a due process claim under federal law. Instead, the Court focused on the fact that Mascow received her “unsatisfactory” performance rating one month before being laid-off and it inquired whether she had an opportunity for a hearing regarding the adverse rating. Though neither State law nor the District offers a formal process for contesting an adverse rating, the litigants agreed that teachers have informal opportunities to seek review. The District contended that an opportunity for face-to-face discussions and written submissions regarding ratings supplies all the due process required for an adverse evaluation, but Mascow responded that she had asked the Superintendent to raise her rating yet he “refused to even entertain the possibility.” Because the record before the Court did not address how teachers can obtain review of their ratings and whether those opportunities would satisfy constitutional due process requirements for some kind of hearing, the Court vacated the district court’s decision on the Fourteenth Amendment claim and remanded it for further proceedings.
 

The Public Access Counselor (PAC) dismissed a complaint alleging that the McHenry County Board of Health (Board) violated section 2.06(g) of OMA during its meeting held on March 23, 2020.
 
The requestor stated in his request for review that the public had no opportunity to comment at the meeting. The agenda produced by the Board stated that it would hold a “virtual meeting” on March 23, 2020. A link was provided in the agenda so that members of the public could listen. The agenda also instructed the public to submit any comments or questions via email two hours prior to the meeting.
 
According to section 2.06(g) of OMA, “[a]ny person shall be permitted an opportunity to address public officials under the rules established and recorded by the public body.”
 
On March 9, 2020, the Governor of Illinois declared all counties in the state a disaster area in response to the outbreak of Covid-19. The Disaster proclamation will remain in effect for 30 days after issuance. In addition to the disaster proclamation, the Governor of Illinois also issued Executive Order 2020-07 on March 16, 2020. This executive order suspended the parts of OMA that require in-person attendance for meetings and set limitations on remote participation. On March 20, 2020, the Governor issued Executive Order 2020-10. Executive Order 2020-10 prohibited citizens from leaving their homes with certain exceptions and limited business operations.
 
The PAC said that it would be, “illogical to construe [OMA] as prohibiting a public body from meeting remotely during public health emergencies because the limitations of meeting in such a format may necessitate a temporary change in the public body’s method of allowing public comment.” The PAC also noted that section 2.06(g) of OMA doesn’t require public bodies to answer questions or to interact with the public. The PAC stated that allowing members of the public to submit questions via email was sufficient to satisfy section 2.06(g) of OMA. Given these facts and circumstances, the PAC determined that no further action was necessary in this matter.
 
Note: We have summarized this non-binding opinion as it may help districts understand how the PAC is interpreting Executive Order 2020-07 on OMA.

The Chicago Executive Airport Board of Directors (Board) did not violate OMA when it held a meeting on March 18, 2020. There was not a quorum of members physically present at the meeting. The chairman was present while six other executives participated via teleconference.
 
On March 19, 2020, a request for review was submitted to PAC. The requestor alleged that the Board violated sections 2.01 and 7(a) of OMA. Section 2.01 of OMA states that, “[a] quorum of members of a public body must be physically present at the location of an open meeting.” Section 7(a) of OMA states that a member may be allowed to attend a meeting by other means (video or audio conference) because of certain enumerated reasons if a quorum of members are physically present.
 
This meeting took place under special circumstances. Under normal circumstances, the six executives would not have been able to attend remotely. However, the Governor of Illinois declared all counties of Illinois as a disaster area on March 9, 2020, and issued Executive Order 2020-07 on March 16, 2020 in response to the outbreak of COVID-19. Executive Order 2020-07 suspended sections 2.01 and 7(a) of OMA for the duration of the Gubernatorial Disaster Proclamation. Executive Order 2020-07 and the disaster proclamation were in effect at the time of the meeting. Therefore, the meeting was lawful and no further action was needed.
 
Note: We have summarized this non-binding opinion as it may help districts understand how the PAC is interpreting Executive Order 2020-07 on OMA.

The Newton City Council (City) violated OMA by approving an ordinance without providing sufficient advance notice of that final action on the meeting agenda.

On its August 20, 2019 meeting agenda, the City listed the following as Agenda item 8.d.: “[c]onsider and act on Ordinance 19-11 to Amend Section 33-4-4(F).” The agenda did not specify what Ordinance 19-11 concerned and this omission was submitted to the PAC for review.

Section 2.02(c) of OMA states that, “[a]ny agenda required under this Section shall set forth the general subject matter of any resolution or ordinance that will be the subject of final action at the meeting.” The PAC noted that while the term “general subject matter” is ambiguous, legislative debate on Section 2.02(c) indicates the General Assembly intended that agendas provide sufficient detail to notify members of the public of the types of final actions public bodies anticipate taking at their meetings. Because Agenda item 8.d. only provided an ordinance number and did not identify the general subject matter at issue – application fees for permits - or incorporate the relevant City Code provision by reference or hyperlink, the City violated Section 2.02(c). As a result, the PAC ordered the City to reconsider its August 20, 2019 final action on the fee ordinance at a properly noticed meeting with an agenda containing the general subject matter of that ordinance.

This opinion is binding only to the parties involved and may be appealed pursuant to State law.
 

The United States Court of Appeals for the Seventh Circuit (Court) dismissed a former assistant principal’s claims that she was forced to resign in retaliation for speech about a student discipline matter, which she alleged violated her First Amendment free speech rights and Fourteenth Amendment due process rights.
 
In August 2014, Plaintiff Lisa Ulrey (Ulrey) was employed by Manchester Community Schools (the District) as an assistant principal where her written job description included duties to “coordinate and administer student attendance and discipline policies.” Ulrey learned that the District’s superintendent had granted an adult student permission to possess cigarettes (but not smoke them) on school grounds even though this was prohibited by District policy. Ulrey disagreed with this decision and contacted the School Board president. The School Board president then contacted the superintendent, who rebuked Ulrey for going over his head and threatened to reprimand her if she did not apologize. Ulrey apologized. Three months later, in November 2014, Ulrey was called to a meeting with the superintendent regarding errors with Ulrey’s administrative license. The superintendent requested that Ulrey resign and she did, using a letter of resignation the superintendent had prepared for her. Ulrey’s resignation was promptly approved the School Board.
 
Reviewing these facts, the Court found that Ulrey spoke to the School Board president as an employee pursuant to her official duties, not as a private citizen. As a result, Ulrey’s First Amendment claim failed because her speech was considered constitutionally unprotected as a matter of law. Regarding Ulrey’s Fourteenth Amendment due process claim, the Court noted the general rule that “an employee who resigns – voluntarily relinquishing her interest in continued employment – may not complaint of a lack of due process” unless one of two narrow exceptions exists: 1) constructive discharge, which is akin to a hostile environment work claim, or 2) coerced resignation, which “is characterized by the presence of a Hobson’s choice in which the employee must resign or suffer severe consequences, such as facing criminal charges.” The Court found that neither of these exceptions existed, even if Ulrey thought the superintendent’s “vibes” and “physical demeanor” indicated he wanted to fire her.