Attorney General finds a violation of Open Meetings Act (“OMA”)

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Attorney General finds a violation of Open Meetings Act (“OMA”)

Nov 2, 2021

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based upon board requiring “public comment” on personnel issues to be given during the closed session

On June 15, 2021, the Board of Education for Hillsboro Community Unit School District #3 (“Board”) held a meeting attended by a number of community members who wished to discuss the district’s employment of three athletic coaches. Prior to the start of the meeting, ten community members submitted a “Public Comment Form” to the district’s superintendent. The superintendent then spoke to each of these community members individually. They all indicated individually that they wished to speak at the meeting about the coaches.

The meeting began and immediately after taking attendance, the Board president read the agenda item “recognition of the audience.” The superintendent interjected and acknowledged the community members’ interest. He stated further that it would be most appropriate for each of the community members to address the Board in a closed session. Next, the Board voted to go into a closed session pursuant to the OMA exception that authorizes closed session to discuss “the appointment, employment, compensation, discipline, performance, or dismissal of specific employees.”

During the closed session, each community member who wished to speak was given the opportunity to do so. They were called into the closed session one by one to provide their comments. The Board did not allow for a public comment period during the open session of the meeting either before or after the closed session took place.

Based on a complaint from a member of the media, the Public Access Bureau of the Attorney General’s office reviewed the facts of the situation and found that although the Board could properly address the employment-related issues in a closed session, the Board was “neither required to restrict all discussion of that issue to closed session nor authorized to prohibit the public from addressing it in open session” and found that the Board violated the OMA by requiring members of the public to address the Board during closed session. In addition, the Attorney General noted that although a unit of government may adopt reasonable rules for public comment, “a practice of forbidding public comment on the retention of public employees would unduly restrict the rights of speakers to address the board.”

However, despite these findings, the Attorney General stopped short of requiring the release of the closed session minutes as a remedy, reasoning that the people who addressed the Board in closed session may have adjusted their comments in anticipation of their comments not being made public.  The opinion directed the Board to provide for an opportunity for public comment in an open session at all future meetings.

If you have any questions, please do not hesitate to contact a Robbins Schwartz attorney.