In a non-binding opinion, the Public Access Counselor (PAC) held that a school district violated the Open Meetings Act (OMA) when the board’s negotiations team, which included three board members, held a meeting to discuss on-going negotiations without notifying the public of the meeting in accordance with the OMA.
On March 31, 2015, the negotiations team of a school district, which included three board members and three administrators, participated in a bargaining session with the teachers’ union. The next day, April 1, 2015, the negotiations team met to debrief the previous bargaining session and to prepare for the next session. The teachers’ union did not participate in the meeting, and no public notice of the meeting was provided. A complaint was subsequently filed alleging that the negotiations team’s debriefing preparation meeting violated the OMA.
In response to the allegations, the District cited Section 18 of the Illinois Educational Labor Relations Act (115 ICLS 5/18), which exempts collective bargaining negotiations from the provisions of the OMA. The District argued that the discussions that took place on April 1 were a part of the collective bargaining negotiations and therefore exempt from the OMA requirements. The District emphasized that such discussions were essential for the negotiations team to engage in effective collective bargaining with the union. Moreover, requiring compliance with the OMA for all portions of negotiations other than direct talks with the union is impractical. Such a requirement would dramatically hinder a district negotiating team’s ability to prepare for and respond to negotiation events.
The PAC disagreed with the District’s arguments and ruled that the April 1 meeting violated the OMA because Section 18 of the IELRA does not expressly refer to discussions concerning collective bargaining negotiations. In the PAC’s view, the only time Section 18 of the IELRA exempts the negotiations team from the requirements of the OMA is when the District is in the same room as the union and engaged in negotiations.
Further, the PAC held that Section 2(c)(2) of the OMA (5 ILCS 120/2(c)(2)) contains its own provision excepting a public body’s internal discussions of collective bargaining negotiations from discussion in open session, but all other requirements of the OMA still apply (i.e., notice, minutes, presence of quorum) during such discussions. The PAC reasoned that if Section 18 of the IELRA renders OMA inapplicable to discussions related to collective bargaining matters, then Section 2(c)(2) of the OMA would be superfluous. In its decision, the PAC disregards the difference between general board discussions that generally discuss the status of collective bargaining with negotiations team meetings that are necessary to react to, debrief from, and prepare for bargaining sessions with the union.
The PAC’s narrow reading, while non-binding, could potentially impact how school boards choose their negotiations team members and engage in negotiations activities when not directly engaged with the union. If the OMA is only inapplicable during across the table talks with the union, it would be impractical to designate three or more board members to the negotiations team. Any meeting involving the negotiations team outside the presence of the union team, including caucuses during negotiation sessions, could potentially violate the OMA. In fact, due to the requirement that a quorum be physically present for board meetings, teams with three board members from a seven member public body would never be permitted. An additional concern not addressed in this opinion is whether the PAC would consider a negotiations team even with two or fewer board members as a committee of the board and therefore subject to the OMA. If that is the case, collective bargaining would be unworkable.
Again, and fortunately, this is not a binding opinion. Public bodies, however, when determining who should serve on a negotiations team, should consider the apparent opinion of the PAC that negotiations teams that would otherwise be subject to the OMA due to their member make up are only exempt from the OMA when engaged in across the table talks with the union.