OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan ATTORNEY GENERAL February 22. 2018 Via electronic mail Mr, John Krafi Via electronic mail Mr. Steven M. Richart Hodges, Loizzi. Eisenhammer, Rodick Kuhn LLP 3030 Salt Creek Lane, Suite 202 Arlington Heights, Illinois 60005 sriehart@hlerk.com RE: OMA Request for Review --2017 PAC 51019 Dear Mr, Krafi and Mr. Richart: This determination letter is issued pursuant to section 3.5(e) of the Open Meetings Act (OMA) (5 ILCS (West 2016)), For the reasons that follow, the Public Access Bureau is unable to conclude that the Board of Trustees of Jasper County Community Unit School District No. 1 (Board) violated the requirements in connection with its December 18, 2017, meeting, On December 27, 2017, Mr. John Krafi submitted a Request for Review to the Public Access Bureau alleging that the Board entered into an improper closed session afier the conclusion of is regular open meeting on December 18, 20171 Specifically, he alleges that the Board (1) did not comply with the procedural requirements for closing a meeting set forth in section 2a (5 LCS 120/2a (West 2016)); (2) entered closed session for a reason that is not among the statutory exceptions to the general requirement that public bodies conduct public business openly; and (3) failed to record the closed session, On January 2. 2017, this office sent a copy of the Request for Review to the Board and asked it to respond to Mr. Kratt's allegations On January 18. 2018, the Board responded by denying the allegations. The Board's response states that the regular meeting had adjourned and that it "closed the door to the room for 5m 5m Second t217t782~1090 . try an) mam - m; (217)78277046 100West Randolph sum, Chicago, Illinois, 606m - (summation TTY ammam FaxJlelflH-SEDE tool Eur Mam, mm wan) 529-64011- rrv, lam 529.5403 - Fax ram snails Mr. John Kraft Mr. Steven M. Richart February 22, 2018 Page 2 approximately 29 seconds" ( according to Mr. Kraft's own Request for Review) while a police officer interviewed one or more Board member about a reported disturbance that had just taken place." 1 On January 19, 2018, this office forwarded a copy of the response to Mr. Kraft; he replied on January 20, 2018. DETERMINATION OMA is intended " to ensure that the actions of public bodies be taken openly and that their deliberations be conducted openly." 5 ILCS 120/ 1 ( West 2016). Section 2( a) of OMA 5 ILCS 120/ 2( a) ( West 2016), as amended by Public Acts 100- 201, effective August 18, 2017; 100- 465, effective August 31, 2017) 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." Section 1. 02 of OMA ( 5 ILCS 120/ 1. 02 ( West 2016)) defines a " meeting" as: A] ny gathering, whether in person or by video or audio conference, telephone call, electronic means ( such as, without limitation, electronic mail, electronic chat, and instant messaging), or other means of contemporaneous interactive communication, of a majority of a quorum of the members of a public body held for the purpose of discussing public business or, for a 5 -member public body, a quorum of the members of a public body held for the purpose of discussing public business. If a gathering of members of a public body meets this definition, then all of the requirements of OMA apply. The Office of the Attorney General has stated that " whether a gathering falls within the definition of meeting as used in the Act, would depend upon the peculiar facts in each situation." 1974 I11. Att' y Gen. Op. No. S- 726, issued March 22, 1974, at 126. " In theory, there is no absolute prohibition against the members of a public body attending an' informational meeting' without triggering the application of OMA, as long as the members do not make "[ d] eliberational statements" or engage in " unrecorded discussions" concerning public business amongst themselves. 111. Att' y Gen. Op. No. 95- 004, issued July 14, 1995, at 1011; see also Nabhani v. Coglianese, 552 F. Supp. 657, 661 ( N.D. Ill. 1982) ( a gathering does not constitute a meeting for purposes of OMA when there is " no examining or weighing of reasons for or against a course of action, no exchange of facts preliminary to a decision, [ and] no attempt to reach accord on a specific matter of public business."). Letter from Steven M. Richart, Hodges, Loizzi, Eisenhammer, Rodick & Kohn LLC, to Sandra Cook, Assistant Attorney General, Public Access Bureau, Office of the Attorney General ( January 18, 2018), at 2. Mr. John Kraft Mr. Steven M. Richart February 22, 2018 Page 3 Both parties agree that Mr. Kraft approached the Board after the conclusion of its regular meeting and that the police were summoned. Kraft and then interviewed members of the Board. Upon arriving, the police interviewed Mr. The Board' s response to this office states that no public business was conducted while the door to the Board room was closed for 29 seconds. Instead, the Board states that a police officer interviewed one or more Board members, who were merely describing events that already occurred so the police officer may determine his next course of action. i2 ( Emphasis in original.) Mr. Kraft' s reply argues that there is " no minimum time limit on improper closed sessions. i3 He further alleges that the police officer' s questioning of the Board was public business as "[ i] t just happens to be that the public business they were still gathered to discuss pertained to what happened after the meeting, but it was still public business of that public body. i4 Mr. Kaft' s reply further argues that, " anything that happens on school district property is public business, and they were definitely discussing what happened on school district property. i5 In support of his assertion that the Board held an improper closed meeting, Mr. Kraft cited People ex rel. Difanis v. Barr, 83 Ill. 2d 191 ( 1980). There, the Illinois Supreme Court considered whether a quorum of members of a city council violated OMA by holding a political caucus to discuss public business, including topics on the agenda for a regular city council meeting later than night. Difanis, 83 111. 2d at 197- 98. In holding that the gathering violated OMA, the Court emphasized that " public business was deliberated and it appears that a consensus on at least one issue was reached outside of public view." Difanis, 83 Ill. 2d at 199. In contrast, the Board' s 29 -second gathering did not involve a political caucus, and the available evidence does not establish that the Board deliberated or reached a consensus on any matter. Although Mr. Kraft suggests several ways that the gathered Board members could have collectively discussed how to respond to the incident that led to police being summoned, the Board' s response to this office denies that any such deliberations occurred. Because of these conflicting versions, there is insufficient evidence from which this office could 2Letter from Steven M. Richart, Hodges, Loizzi, Eisenhammer, Rodick & Kohn LLC, to Sandra Cook, Assistant Attorney General, Public Access Bureau ( January 18, 2018), at 4. 3Letter from John Kraft to Sandra Cook, Assistant Attorney General, Public Access Bureau, Office of the Attorney General ( January 19, 2018). Letter from John Kraft to Sandra Cook, Assistant Attorney General, Public Access Bureau, Office of the Attorney General ( January 19, 2018). Letter from John Kraft to Sandra Cook, Assistant Attorney General, Public Access Bureau, Office of the Attomey General ( January 19, 2018). Mr. John Kraft Steven M. Richart February 22. 2018 Page 4 determine that a majority of a quorum of the Board engaged in deliberative discussions of public business during the 29 seconds in question. Accordingly, this office is unable to conclude that the Board Violaled OMA by holding an improper closed session subject to the requirements of OMA. The Public Access Counselor has determined that resolution of this matter does not require the issuance ofa binding opinion, This letter serves ro close this file. If you have any questians, please contact me at 217-782-1699 or at the Springfield address listed on the bottom ofthe first page ufthis letter. Very lruly yours, SANDRA COOK Assistant Attomey General Public Access Bureau 49436 0 23 meeting proper sd