OFFICE OF THE ATTORNEY GENERAL

STATE OF ILLINOIS

Lisa Madigan
ATTORNEY GENERAL

March 15, 2017

Via electronic mail

Mr. Robert T. Bernat
Bernat & Bernat, P. C.
120 South LaSalle Street, Suite 1600
Chicago, Illinois 60603
rbernat@bematlaw. com

Via electronic mail

Mr. Steven M. Richart
Hodges, Loizzi, Eisenhammer, Rodick & Kohn LLP
3030 Salt Creek Lane, Suite 202
Arlington Heights, Illinois 60005
srichart@hlerk. com

RE: OMA Request for Review 2016 PAC 41161

Dear Mr. Bernat and Mr. Richart:

This determination letter is issued pursuant to section 3. 5( e) of the Open Meetings

Act ( OMA) ( 5 ILCS 120/ 3. 5( e) ( West 2015 Supp.)). For the reasons that follow, the Public
Access Bureau concludes that the North Shore School District 112 Board of Education ( Board)
improperly discussed matters that were not within the scope of the exceptions on which the
Board relied to close its meeting on February 16, 2016. The Board, however, has remedied this
violation by disclosing the portion of the closed session verbatim recording containing the
unauthorized discussion.

On April 4, 2016, Mr. Robert T. Bernat, on behalf of a client, submitted a Request

for Review alleging: ( 1) that the Board held an improper closed session discussion during its
December 15, 2015, meeting; and ( 2) that the Board violated OMA at its February 16, 2016,
meeting by ( a) failing to commence its meeting in open session before entering closed session;

500 South Second Street, Springfield, Illinois 62706 ( 217) 782- 1090 TTY: ( 217) 785 - 2771 Fax: ( 217) 782- 7046
100 West Randolph Street, Chicago, Illinois, 60601 ( 312) 814- 3000 TTY: ( 312) 814- 3374 Fax: ( 312) 814- 3806
1001 East Main, Carbondale, Illinois 62901 ( 618) 529- 6400 TTY: ( 618) 529- 6403 Fax: ( 618) 529- 6416
Mr. Robert T. Bernat
Mr. Steven M. Riehart
March 15, 2017
Page 2

and ( b) holding an improper closed session discussion.' On April 11, 2016, this office forwarded
a copy of the Request for Review to the Board and asked it to provide a written response to Mr.
Bernat' s allegations, together with copies of the notice, agenda, minutes, and closed session

verbatim recording from the February 16, 2016, meeting.

On May 4, 2016, this office received those materials from the Board, as well as a
recording of the open session of the February 16, 2016, meeting and records regarding a budget
deficit reduction plan ( BDR3). On May 25, 2016, Mr. Bernat replied. After attempts by this
office to informally resolve this matter, and in response to questions from this office, on January
19, 2017, the Board submitted an additional letter, which it designated as a sur -reply. The letter
stated that ( 1) the District's law firm conducted a comprehensive OMA in- service training on
May 23, 2016, with the Superintendent, Board President, and other District administrators which
lasted over three hours and included such topics as the proper scope of closed session

discussions; and ( 2) the Board had released the first 46 minutes and 19 seconds of the February
16, 2016, closed session, which is now available to the public upon filing a FOIA request. The
letter also provided further information concerning the Board' s procedures for closing the
February 16, 2016, Board meeting. On January 21, 2017, Mr. Bernat responded to the Board' s
3
sur-
reply.

DETERMINATION

December 15, 2015, Meeting

Mr. Bernat alleged that the Board violated OMA during its December 15, 2015,
meeting, although he did not submit a Request for Review to the Public Access Counselor until
April 4, 2016. Section 3. 5( a) ( 5 ILCS 120/ 3. 5( a) ( West 2015 Supp.)) provides, in pertinent part:

Mr. Bernat also alleged that the Board failed to make a verbatim recording of its February 16,
2016, closed session. The Board provided this office with a copy of its verbatim recording of that closed session,
therefore, this allegation is unfounded.

2The Board continues to withhold the final two minutes and 31 seconds of the recording, as it
concerns specific employment issues.

3Mr. Bernat contends that OMA does not allow the Board to submit a sur -reply. Section 3. 5( e) of
OMA ( 5 ILCS 120/ 3. 5( e)( West 2015 Supp.)) provides that " the Attorney General may exercise his or her discretion
and choose to resolve a request for review by mediation or
by a means other than a binding opinion[.]" Section
3. 5( d) of OMA ( 5 ILCS 120/ 3. 5( d)( West 2015 Supp.)) provides that "[ i] n addition to the request for review, and the
answer and the response thereto, if any, a requester or a public body may furnish affidavits and records concerning
any matter germane to the review." Further, as specified in section 3. 5( b) of OMA ( 5 ILCS 120/ 3. 5( b) ( West 2015
Supp.)) a public body " shall otherwise fully cooperate with the Public Access Counselor." Accordingly, this office
may attempt to mediate requests for review and may ask for additional information, by telephone or otherwise, and
the public body may provide that information.
Mr. Robert T. Bernat
Mr. Steven M. Richart
March 15, 2017
Page 3

A person who believes that a violation of this Act by a

public body has occurred may file a request for review with the
Public Access Counselor established in the Office of the Attorney
General not later than 60 days after the alleged violation. If 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.

The December 15, 2015, Board meeting occurred more than 60 days before Mr.
Bernat submitted his Request for Review. The Request for Review alleges that the Board
improperly discussed a school bond referendum in closed session and then voted in open session
to place the referendum on the ballot for the March 16, 2016, election. The Request for Review
did not, however, assert or provide any facts from which this office could conclude that Mr.
Bernat did not discover this alleged violation within the statutory 60 -day period, despite using
reasonable diligence. Mr. Bernat' s argument that OMA may be construed as allowing the tolling
of the time to submit a Request for Review provided that a requester do so within 60 days after
the Attorney General discovers the violation, is contrary to the plain language of section 3. 5( a) of
OMA. See Citizens Opposing Pollution v. ExxonMobil Coal U.S.A., 2012 IL 111286, 23, 962
N.E. 2d 956, 964 ( 2012) ( the language of a statute " must be given its plain and ordinary
meaning.").Accordingly, this office does not have authority to review whether the Board
violated OMA in connection with its December 15, 2015, meeting.

Procedure for Entering Closed Session

A public body may hold a meeting closed to the public, or close a portion of a
meeting to the public, upon a majority vote of a quorum present, taken at a meeting open to the
public for which notice has been given as required by [ OMA]." 5 ILCS 120/ 2a ( West 2014). In

other words, a meeting must begin in open session and a public body must then vote to enter into
closed session.

Mr. Bernat alleged that the February 16, 2016, meeting did not begin in an open
session. In its response to this office, the Board denied that allegation, asserting that it began the
meeting in open session and that the verbatim recording demonstrates that a motion to close the
meeting was carried before the door to the closed session meeting room was closed. The
minutes confirm that the meeting began in open session before a vote to adjourn to closed
session, and the verbatim
recording documents that the door to the meeting room was not closed
Mr. Robert T. Bernat
Mr. Steven M. Richart
March 15, 2017
Page 4

until after the motion passed to enter closed session.4 Mr. Bernat replied that the beginning of
the meeting was not effectively open because it was not held in the room where the remainder of
the open meeting took place and because no meeting room number was given in the agenda.
However, those allegations were not included in Mr. Bernat' s Request for Review, and there is
no allegation that members of the public were excluded from the meeting prior to the Board' s
vote to enter closed session. Under these circumstances, this office concludes, based on the
available information, that the Board did not violate section 2a of OMA. The Board may wish to
amend its procedure to conduct votes to close its meetings in the same room where the open
session portions of its meetings take place, to ensure that members of the public are not limited
in their ability to be present during those proceedings.

February 16, 2016, Closed Session Discussion

Section 2( a) of OMA ( 5 ILCS 120/ 2( a) ( West 2015 Supp.)) provides that "[ a] ll
meetings of public bodies shall be open to the public unless excepted in subsection ( c) and closed
in accordance with Section 2a." The exceptions set forth in subsection 2( c) of OMA are to be
strictly construed, extending only to subjects clearly within their scope." 5 ILCS 120/ 2( 6)
West 2015 Supp.).

The February 16, 2016, Board meeting minutes state that the Board closed the
meeting to consider matters pursuant to sections 2( c)( 1) ( the "[ a] ppointment, employment * * *
or dismissal of specific employees"), 2( c)( 2) ("[ c] ollective
bargaining matters"), and 2( c)( 11)
Mitigation") of OMA ( 5 ILCS 120/ 2( c)( 1), ( c)(
Supp.)). 5 Mr. Bernat' s
2), ( c)( 11) ( West 2015

Request for Review generally alleged that the Board violated section 2( a) of OMA by discussing
in closed session matters not authorized by any exception in section 2( c), and specifically
expressed concern that the Board discussed BDR3. 6 The Board has asserted that whether

Although Mr. Bernat seems to claim in his reply that this vote occurred in closed session because
it is documented in the closed session verbatim recording, it appears to this office that the verbatim recording instead
captured the Board's vote during open session.

5North Shore School District 112 Board of Education, Meeting, February 16, 2016, Minutes I.
6Letter from Robert T. Bernat, Bernat & Bemat, a Professional Corporation, to Sarah Pratt, Esq.,
Public Access Counselor, Office of the Attorney General ( April 4, 2016).
Mr. Robert T. Bernat
Mr. Steven M. Richart
March 15, 2017
Page 5

portions of its closed session discussion violated OMA is moot7 because the Board has
subsequently released the majority of the closed session recording and the closed session minutes
to the public. Although release of the closed session recording may affect the remedy suggested
by the Public Access Counselor, the issue of whether the closed session discussion violated
OMA is properly before the Public Access Counselor. The Board' s submissions to this office
have not conceded that the Board violated OMA. Further. one of the statutory functions of the
Public Access Counselor, in addition to resolving disputes concerning potential violations of
OMA, is to educate the public and public bodies with respect to the interpretation of OMA. 15
ILCS 205/ 7 ( West 2014). As such, this office will address whether the Board' s closed session
discussion violated OMA.

This office has listened to the verbatim recording of the closed session of the
February 16, 2016, Board meeting, which was just under 49 minutes long. Based on our review,
the Board spent the bulk of the first 46 minutes and 19 seconds of the closed session discussing
payment to and negotiations with certain architects and engineers. Although the Board did not

discuss BDR3 during the closed session, none of the topics discussed during the majority of the
closed session fall within the scope of any of the cited exceptions to the general requirement that
public bodies conduct public business openly. Only the discussion during the final two minutes
and 31 seconds was properly conducted in closed session because it involved the employment of
specific employees as authorized by section 2( c)( 1) of OMA.

Because the bulk of the Board' s closed session discussion was not authorized by
any of the exceptions that the Board publicly cited and identified as its bases for closing the
meeting, this office concludes that the Board violated section 2( a) of OMA by improperly
discussing those matters in closed session. 8 However, because the Board has made available to
the public that portion of the closed session, no additional action by the Board is required to

7" An issue is moot where no actual rights or interests of the parties remain or where events occur
which render it impossible for the reviewing court to grant effectual relief to either party." People ex rel. Hartigan
v. Illinois Commerce Comm' n, 131 111. App. 3d 376, 378, 475 N. E.2d 635, 637 ( 4th Dist. 1985) ( allegations that
public body violated OMA by holding improper closed meetings and concluding from these meetings that it would
not conduct formal proceedings moot because the public body effectively remedied the violation by first voiding its
decision to not conduct formal proceedings and then providing for a public hearing of the issues). However, a
matter is not moot where the only effective remedy of a violation of OMA is to issue an injunction against future
violations. See Bd. of Regents of Regency Univ. Sys. v. Reynard, 292 111. App. 3d 968, 980, 686 N. E. 2d 1222, 1230
4th Dist. 1997).

8The Board contends that because Mr. Bemat' s allegations specifically concerned BDR3, and
because the Board did not discuss BDR3 in the closed session, this office should not review whether the Board
violated section 2( a) of OMA. Although Mr. Bernat raised concerns about any discussion of BDR3, his Request for
Review alleged generally that the Board violated section 2( a) of OMA. Therefore, this office' s review is not limited
to the BDR3 issue.
Mr. Robert T. Bernat
Mr. Steven M. Richart
March 15, 2017
Page 6

remedy that violation. This office cautions the Board to confine its closed session discussions to
the parameters of the section 2( c) exception( s) on which it relies in the future.

The Public Access Counselor has determined that resolution of this matter does
not require the issuance of a binding opinion. This file is closed. If you have any questions, you
may contact me at ( 312) 814- 5201 or at the Chicago address on the bottom of the first page of
this letter.

Assistant Attorney General

Public Access Bureau

41161 o 2a proper 2c improper sd