HIGHLIGHTS:

  • The Illinois Attorney General finds that another Illinois local government discussed personnel matters in closed session outside the scope of the Illinois Open Meetings Act (OMA).
  • The Attorney General also concludes that a mere reference to "personnel" in the motion for closed session violates the state's OMA.

Illinois Attorney General Lisa Madigan has issued a binding opinion finding that the Knox County Board Finance Committee violated the Illinois Open Meetings Act (OMA) by improperly going into closed session and discussing unauthorized personnel topics in closed session.

The OMA exceptions in this case were (i) Section 2(c)(1), which is often referred to as the "personnel" exception, but which the statute refers to as relating to "specific employees of the public body"; and (ii) Section 2(c)(2), which permits discussion of "collective negotiating matters."

Illinois Public Access Opinion 15-007

In Public Access Opinion 15-007, issued on Sept. 16, 2015, the Finance Committee of the Knox County Board was accused of violating the OMA by going into closed session to consider: (i) the elimination of an employee position affecting a single employee; and (ii) the implementation of a hiring freeze. The county contended that because the elimination of a position would lead to the dismissal of a "specific employee," and the hiring freeze would cause issues with the county's collective bargaining units, the discussion of these issues in closed session was authorized under Sections 2(c)(1) and 2(c)(2) of the OMA.

The Attorney General disagreed, finding that while Section 2(c)(1) of the OMA permits public bodies to discuss in closed session the "dismissal of specific employees," it can be used only to discuss the dismissal of a specific employee for reasons relating to an employee's performance. The Attorney General explained:

"The elimination of a job or position – even one held by only a single employee – for budgetary or other reasons unrelated to the performance of the employee is a matter relating to budget and management which does not carry implications for an individual employee's reputation. Thus, a discussion of eliminating a position itself which does not consider the performance of the employee or whether a particular employee should occupy the position, is not within the scope of the section 2(c)(1) exception."

While Section 2(c)(1) includes language that appears to permit a broad range of discussion about personnel matters in addition to "employee performance," this Attorney General opinion is consistent with the Aug. 4, 2015 Binding Opinion (Public Access Opinion 15-005), in which the Attorney General concluded that Section 2(c)(1) is intended to allow discussion relating only to the "merits of individual employees, or the conduct of individual employees," and not underlying budgetary issues. (See Holland & Knight's alert, "Illinois Attorney General Limits 'Personnel' Exception Under Open Meetings Act," Sept. 9, 2015.)

The Attorney General also concluded that the Finance Committee was not authorized under Section 2(c)(2) of the OMA to discuss a hiring freeze in closed session. Section 2(c)(2) authorizes closed-session discussions of "collective negotiating matters." Knox County argued that the hiring freeze would create issues with its collective bargaining units because a majority of county employees were members of these units.

According to the Attorney General, Section 2(c)(2) only authorizes a closed session when a public body is in "active" or has "imminent" negotiations with collective bargaining units, even though the statutory language of Section 2(c)(2) does not include those restrictions. Because the county was not engaged in active or imminent negotiations with its unions, the Attorney General held that the discussion was not permitted under the OMA.

Finally, the Attorney General analyzed the procedure for initiating discussion in closed session. Section 2a of the OMA requires public bodies to: (i) vote on whether to go into closed session; and (ii) provide a "citation to the specific exception" authorizing the closed session.

In making its motion for closed session, the Knox County Finance Committee indicated that it was going into closed session to "discuss personnel." The Attorney General concluded that a mere reference to "personnel" is inadequate to inform the public of which statutory provision authorized the closed-session discussion. To satisfy the requirements of the OMA, public bodies must be precise enough in their citations so that the public understands which OMA exception authorizes the closed sessions.

To be consistent with this latest Attorney General Opinion, all Illinois public bodies must carefully scrutinize the scope of any closed discussions under Sections 2(c)(1) and 2(c)(2), and they must be specific in their motions to go into closed session.