OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan [ATTORNEY GENERAL June 14,2016 Via electronic mail Ms. Talea Nelson Village Trustee Village of Chadwick talea_davis@yahoo.com Via electronic mail Mr. Edward J. Mitchell 110 North Broad Street Lanark, Ilinois 61046 mitbk@hotmail.com RE: OMA Request for Review — 2016 PAC 41190 Dear Ms. Nelson and Mr. Mitchell: ‘This determination letter is issued pursuant to section 3.5(¢) of the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2014), as amended by Public Act 99-402, efffective August 19, 2015). For the reasons that follow, the Public Access Bureau concludes that during closed session on April 4, 2016, the Village of Chadwick (Village) Board of Trustees (Board) improperly discussed matters that were not authorized by the exception upon which the Board relied to close the meeting. BACKGROUND On April 5, 2016, the Public Access Bureau received the above-captioned Request for Review in which Trustee Talea Nelson alleged three separate OMA violations. First, she alleged that the Board violated OMA during its April 4, 2016, closed session by discussing ‘matters that were not encompassed by the section 2(c)(1) exception (5 ILCS 120/2(c)(1) (West 2014), as amended by Public Acts 99-78, effective July 20, 2015; 99-235, effective January I, 2016; 99-480, effective September 9, 2015), which the Board identified as its basis for closing the meeting. In particular, Trustee Nelson asserted that the Board improperly discussed two ‘00 Sou Second Stet, Spring, ins 62706 + 217) 782-1090 « TTY: (217) 785-2771 + Fax: (217) 740-7046 "oo West Rando (Chicago, Minos, 0601 » (12) 814-3000 + TTY: (312)814-3374 + Faw: O12) 814-3806 001 East Main, Carbondale, Minos 62901 +618) 529-6400» IT: (618) 529-6403 = Fax (618) 529-6816Ms. Talea Nelson Mr. Edward J. Mitchell June 14, 2016 Page 2 trustees, who are not employees of the Village. Second, Trustee Nelson alleged that the Board improperly discussed two litigation matters when, before entering closed session, it did not Publicly cite an appropriate exception to the general requirement that public bodies conduct public business openly. Trustee Nelson further asserted that at one time the Board had not conducted a semi-annual review of its closed session minutes for more than two years. On April 7, 2016, this office forwarded a copy of the Request for Review to the Board and asked it to provide a written response to Trustee Nelson's allegations, together with copies of the agenda and minutes of both the open and closed portions of the April 4, 2016, meeting and a copy of the verbatim recording of the closed session discussion. On April 19, 2016, counsel for the Board provided those materials. The Board's written response stated that: Exception number one of the Act, makes reference to the "employment, compensation, discipline, performance," of employees. Clearly a trustee is an employee of the Village. * * * ‘Trustees are paid a regular compensation, are given a W-2 form at the end of the year, have Social Security and Medicare taxes withheld, and report their payment on the line reserved for wages and salary on an income tax return, * * * ‘The second objection is that pending litigation was discussed during the executive session. The motion going into the executive session should have included pending litigation or a separate executive session should have been undertaken for pending litigation. 1 think the council is aware that this is an issue and will be careful not to repeat this error in the future. ‘The Board's response further stated that the Board conducted a semi-annual review of its closed session minutes on March 2, 2015, and December 7, 2015. On April 27, 2016, this office forwarded the Board's response letter to Trustee Nelson. She replied on April 29, 2016, alleging that a trustee is not an employce of the Village of Chadwick. She also disputed that the Board conducted a semi-annual review of minutes on March 2, 2015, but stated that more than six months of meeting minutes were reviewed during the Board's December 7, 2015, closed session. DETERMINATION "Letter from Edward J. Mitchell to Matt Hartman, Assistant Attomey General, Public Access Bureau (April 19, 2016), at 2Ms. Talea Nelson Mr. Edward J. Mitchell June 14, 2016 Page 3 OMA is intended "to ensure that the actions of public bodies be taken openly and that their deliberations be conducted openly." (Emphasis added) 5 ILCS 120/1 (West 2014). Section 2(a) of OMA (5 ILCS 120/2(a) (West 2014), as amended by Public Acts 99-78, effective July 20, 2015; 99-235, effective January 1, 2016; 99-480, effective September 9, 2015) provides that all meetings of a public body shall be open to the public unless the subject of the meeting falls within one of the exceptions set out in section 2(c) of OMA (5 ILCS 120/2(c) (West 2014), as amended by Public Acts 99-78, effective July 20, 2015; 99-235, effective January 1, 2016; 99- 480, effective September 9, 2015). The section 2(c) exceptions are to be "strictly construed, extending only to subjects clearly within their scope." 5 ILCS 120/2(b) (West 2014)); see also Henry v. Anderson, 356 Ill. App. 3d 952, 996-997 (4th Dist. 2005) (strictly construing section 2(@)(1) of OMA). ‘The open session minutes indicate that the Board voted to close the meeting to discuss personnel, but do not indicate which section 2(c) exception the Board cited. Both Trustee Nelson and the Board state that the Board entered closed session pursuant to section 2(6)(1) of OMA, which permits a public body to enter closed session to discuss "[t{he appointment, employment, compensation, discipline, performance or dismissal of specific employees of the public body or legal counsel for the public body.]" The "use of the term ‘specific employees’ in section 2(c)(1) significantly limits the scope of the exception. ‘That exception allows public bodies to discuss in closed session the hiring, merits, performance, conduct, or terms of employment of individual employees." Ill. Att'y Gen. PAC Req. Rev. Ltr. 12658, issued July 7, 2011, at 4. Based on this office's review of the verbatim recording and the closed session minutes of the April 4, 2014, meeting, a significant part of the Board's discussion focused on the conduct of a particular trustee. The Board's response to this office asserted that trustees are Village employees and, therefore, the discussion of the trustee's performance was authorized by section 2(c)(1) of OMA. In her reply to the Board's response, Trustee Nelson contends that the trustee is not an employee, but a public official. Trustee Nelson asserts that section 2(¢)(1) does not apply to public officials. Section 2(d) of OMA (5 ILCS 120/2(4) (West 2014), as amended by Public Acts 99-78, effective July 20, 2015; 99-235, effective January 1, 2016; 99-480, effective September 9, 2015) defines "public office" as: [a] position created by or under the Constitution or laws of this State, the occupant of which is charged with some portion of the sovereign power of this State, The term "public office” shall include members of the public body{.]Ms. Talea Nelson Mr. Edward J. Mitchell June 14, 2016 Page 4 The term “employee” is also defined in section 2(4) of OMA as "a person employed by a public body whose relationship with the public body constitutes an employer-employee relationship under the usual common law rules, and who is not an independent contractor.” Thus, the question is which of these sections applies to the Village trustees. In construing a statute, the primary goal "is to ascertain and give effect to the intent of the General Assembly." Southern Ilinoisan v. Illinois Department of Public Health, 218 I. 2d 390, 415 (2006). ‘Sections of the same statute "should be construed with every other part or section of the statute to produce a harmonious whole." Land v, Board of Education of City of Chicago, 202 II 2d 414, 422 (2002). Words and phrases in one section of a statute "should not be construed in isolation, but interpreted in light of other relevant portions of the statute so that, if possible, no term is rendered superfluous or meaningless." Land, 202 Ill. 2d at 422. Whether an employer-employee relationship exists does not depend upon a single factor; instead all relevant factors must be considered. Wenholdt v. Industrial Com'n, 95 Ml. 2d 76, 80-81 (1983). The factors to be considered include: whether one party, as employer, has the right to direct and control the work of the other party, as employee; whether the asserted employer has the right to discharge the asserted employee; the method of payment; the skill of the work to be done; and the furnishing of tools, materials, and equipment. Luby v. Industrial Com'n, 82 Ill, 2d 353, 358-59 (1980). The Board asserted that elected trustees are employees of the Village because of their regular compensation and the method of payment. However, the method of payment is only one relevant factor. ‘The Village has no authority to direct and control the elected trustees’ work or terminate their public office based upon their performance.” Instead, the elected trustees have the specialized role of serving as the legislative body of Village government.’ Considering all of the relevant factors, it is clear that the trustees are holding a public office rather than serving as employees of the Village. Further, this office has previously determined that elected officials are not considered employees for the purposes of the section 2(c)(1) exception. Ill. Att'y Gen. PAC Reg. Rev. Ltr. 37170, issued December 18, 2015, at 4. In addition, section 2(¢)(3) of OMA (5 ILCS 120/2(c)(3) (West 2014), as amended by Public Acts 99-78, effective July 20, 2015; 99-235, effective January 1, 2016; 99- 480, effective September 9, 2015) authorizes a public body to close a meeting to discuss the “discipline, performance or removal of the occupant of a public office, when the public body is given power to remove the occupant under law or ordinance." Construing elected officials such "The reasons for which an elective office in a municipality with a population of less than $00,000 ‘may become vacant do not include other corporate authorities’ dissatisfaction with the elected officer's job performance. See 65 ILCS $/3.1-10-50 (West 2014), as amended by Public Act 99-449, effective August 8, 2015. *Chadwick, IIL, CODE §1-6-1 (1987), htip:www.chadwickil.convdocuments/government/VOC- CODEBOOK pdf.Ms. Talea Nelson Mr. Edward J. Mitchell June 14, 2016 Page 5 as trustees as "employees" for purposes of OMA would render the section 2(c)(3) exception superfluous by authorizing public bodies to discuss the discipline, performance or removal of all ‘occupants of a public office — including those that the public body is given power to remove under law or ordinance — pursuant to section 2(¢)(1). Although a discussion relating to the conduct of an elected trustee may have been permitted under section 2(¢\(3) of OMA if the Board has the power to remove the trustee under law or ordinance, the Board did not publicly cite that exception as its basis for entering closed session. Accordingly, this office concludes that the portions of the Board's closed session discussion concerning the conduct of a trustee were not authorized by the section 2(c)(1) exception that it relied upon to close the meeting. Although the Board violated OMA by failing to cite an appropriate exception before entering closed session and to record that exception in its minutes, because the discussion concerning a trustee may be a proper subject for closed session, we simply caution the Board to more carefully the proper exceptions, rather than requesting that the discussion be made public. We also note that the Board properly discussed the performance of a specific employee at the conclusion of its closed session discussion. During closed session the Board also discussed two pending litigation matters that, are also beyond scope of the section 2(c)(1) exception that the Board cited as its basis for closing the meeting, The discussion of pending litigation in closed session is permitted under the plain Janguage of section 2(¢)(11) of OMA’ (5 ILCS 120/2(e)(11) (West 2014), as amended by Public Acts 99-78, effective July 20, 2015; 99-235, effective January 1, 2016; 99-480, effective ‘September 9, 2015). This office cautions the Board to limit its future closed session discussions to only those matters that are within the scope of the closed session exceptions cited. Section 2a of OMA. Section 2a of OMA (5 ILCS 120/2a (West 2014)) sets forth the procedure for a public body to enter closed session, including the requirement that: [the vote of each member on the question of holding a meeting closed to the public and a citation to the specific exemption contained in Section 2 of this Act which authorizes the closing of the meeting to the public shall be publicly disclosed at the time of the vote and shall be recorded and entered into the minutes of the meeting, Section 2(¢1!) authorizes a public body to enter closed session to discuss “litigation, when an action against, affecting or on behalf ofthe particular public body has been file and is pending before a court or administrative ‘ribunal, or when the public body finds that an action is probable or imminent, in Which case the bass forthe finding shall be recorded and entered into the minutes of the closed meeting.”Ms. Talea Nelson Mr. Edward J. Mitchell June 14, 2016 Page 6 ‘The Board's open session minutes do not record a citation to a specific exception authorizing the Board to enter closed session. Accordingly, the Board violated section 2a of OMA by holding a closed session without recording the citation to the specific section 2 of OMA exception in its meeting minutes. Semi-Annual Review of Closed Session Minutes Section 2.,06(d) of OMA (5 ILCS 120/2.06(d) (West 2014)) provides: Each publie body shall periodically, but no less than semi- annually, meet to review minutes of all closed meetings. At such ‘meetings a determination shall be made, and reported in open session that (1) the need for confidentiality still exists as to all or part of those minutes or (2) that the minutes or portions thereof no longer require confidential treatment and are available for public inspection. Trustee Nelson alleged that the Board violated OMA by failing to conduct semi- annual reviews of closed session minutes, as required by section 2.06(d) of OMA, to determine whether the need for confidentiality of those minutes still exists. Trustee Nelson alleged that the Board did not conduct a semi-annual review for two years, but did not specify when that two year period occurred. The Board responded that it conducted semi-annual reviews on March 2, 2015, and December 7, 2015. In response, Trustee Nelson acknowledged that more than 6 ‘months of closed session minutes were reviewed on December 7, 2015, However, Trustee Nelson requested that our office conduct a further review of both the March 2, 2015, and December 7, 2015, meetings. Based on the available information, this office concludes that the Board did conduct a semi-annual review of its closed session minutes and finds no basis for additional review of the Board's past meetings in which it reviewed its closed session minutes, The allegation that the Board did not conduct timely reviews of its closed session minutes does not provide a summary facts supporting that a violation occurred that is subject to review by this office. See 5 ILCS 140/3.5(a) (West 2014) ( requiring a person to provide a summary of facts supporting the allegation that a publie violated OMA within 60 days of the alleged violation or, "fi}f facts concerning the violation are not discovered within the 60-day period, but are discovered at a later date, not exceeding 2 years after the alleged violation, by a person utilizing reasonable diligence, the request for review may be made within 60 days of the discovery of the alleged violation.").Ms. Talea Nelson Mr. Edward J. Mitchell June 14, 2016 Page 7 ‘The Public Access Counselor has determined that resolution of this matter does not require the issuance of a binding opinion. Please contact me at (217) 782-9054 or the Springfield address listed on the first page of this letter if you have questions. This, correspondence serves to close this matter. Very truly yours, i ie MATT HARTMAN Assistant Attorney General Public Access Bureau 41190 0 2c! propersimproper 2a improper 206d proper mun