The Public Access Counselor of the Illinois Attorney General’s Office (PAC) recently issued its 6th binding opinion of 2022 finding a public body in violation of the Open Meetings Act for failing to sufficiently describe an agenda item. PAC Op. 22-006.
After a meeting of a school board, an individual filed a request for review with the PAC alleging that the school board voted to make masks optional in the schools without listing that action item on its meeting agenda. The school board filed a response, explaining that the board discussed a revised mitigation plan prepared by the superintendent but did not take a vote on the plan at the meeting. The school board argued that since it did not take final action on the plan, there was no requirement to place that item on the meeting agenda.
The PAC reviewed the meeting minutes, as well as other documents relating to the meeting, including a communication sent out by the school board to parents. The PAC first acknowledged that the board’s discussion of the mitigation plan did not violate the OMA. However, the PAC found that the board did, in fact, take final action on the mitigation plan even though the board did not vote on the plan. The PAC based its decision on language in the meeting minutes that noted that the board reached a “consensus” on the superintendent’s mitigation plan as well as a communication sent out by the board to parents that notified them of the changes to the mitigation plan regarding masking in the schools.
Interestingly, the PAC acknowledged that an Illinois Appellate Court had previously expressly held that “[w]ithout the public vote, no final action has occurred” but then disregarded that holding and similar court holdings in finding that the school board took final action on the masking plan without an actual vote. The PAC seemed to distinguish the court’s holding that no final action is taken without a public vote because the school board in this case had not ratified its decision. Frankly, this issue seems more appropriately raised in an action to challenge the validity of the masking plan changes without final action having been taken by the school board (which is an issue that is clearly outside the PAC’s jurisdiction) rather than having the PAC determine whether final action was taken without proper notice since no vote was actually taken by the board. In an even more surprising turn, the PAC concludes its opinion by ordering the school board to take a formal vote on the plan – seemingly mandating action to determine local legislative policy.