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                                    Appellate Court                               Date: 2016.01.22 08:52:07
                                                                                  -06'00'




        Board of Education of Springfield School District No. 186 v. Attorney General,
                                 2015 IL App (4th) 140941



Appellate Court         BOARD OF EDUCATION OF SPRINGFIELD SCHOOL
Caption                 DISTRICT NO. 186, Plaintiff-Appellee, v. THE ATTORNEY
                        GENERAL OF ILLINOIS, Defendant-Appellant, and MOLLY
                        BECK, Defendant.


District & No.          Fourth District
                        Docket No. 4-14-0941


Filed                   December 15, 2015


Decision Under          Appeal from the Circuit Court of Sangamon County, No. 13-MR-524;
Review                  the Hon. Steven H. Nardulli, Judge, presiding.



Judgment                Affirmed.



Counsel on              Lisa Madigan, Attorney General, of Chicago (Carolyn E. Shapiro,
Appeal                  Solicitor General, and John P. Schmidt (argued), Assistant Attorney
                        General, of counsel), for appellant.

                        Lorilea Buerkett (argued), of Brown, Hay & Stephens, LLP, of
                        Springfield, for appellee.

                        Roger Huebner, of Illinois Municipal League, of Springfield, for
                        amicus curiae Illinois Municipal League.

                        James A. Petrungaro, of Scariano, Himes & Petrarca, Chtrd., of
                        Chicago, for amici curiae Illinois Association of School Boards et al.
     Panel                    JUSTICE STEIGMANN delivered the judgment of the court, with
                              opinion.
                              Justices Harris and Appleton concurred in the judgment and opinion.


                                               OPINION

¶1         During a March 2013 public meeting, plaintiff, the Board of Education of Springfield
       School District No. 186 (Board), voted to terminate the employment of its superintendant, Dr.
       Walter Milton, Jr. In May 2013 and April 2014, defendant, the Attorney General of Illinois
       (AG)–acting on allegations raised by defendant, Molly Beck–issued two binding opinions in
       which the AG ultimately concluded that the Board failed to comply with the Open Meetings
       Act (Act) (5 ILCS 120/1 to 7.5 (West 2012)) when it terminated Milton’s employment.
¶2         In June 2013, the Board sought administrative review of the AG’s conclusions that the
       Board (1) terminated Milton’s employment by impermissibly taking final action during a
       closed Board session and (2) failed to adequately inform the public of Milton’s proposed
       termination prior to a subsequent public meeting. In November 2013 and September 2014,
       respectively, the trial court reversed both of the AG’s conclusions, finding that the Board’s
       termination action complied with the Act.
¶3         The AG appeals, arguing that she properly concluded that the Board failed to comply with
       the Act. We disagree and affirm the trial court’s judgment.

¶4                                          I. BACKGROUND
¶5         In November 2012, Milton sent a letter to the Board inquiring about terminating his
       employment contract. Thereafter, the Board and Milton reached an agreement on the terms of
       his contractual release. On January 31, 2013, Milton signed and dated a 19-page “Separation
       Agreement and Release” (Agreement). The Agreement set forth, among other matters,
       compensation, health-care coverage, and the parties’ respective obligations with regard to
       Milton’s scheduled March 31, 2013, resignation.
¶6         During a portion of the February 4, 2013, meeting that was not open to the public, six of the
       Board’s seven members signed the Agreement but did not date their signatures. On March 1,
       2013, the Board published an agenda and the entire Agreement on the “Springfield Public
       Schools Electronic School Board” website. This posting was four days prior to the scheduled
       March 5, 2013, public meeting. See Springfield Public Schools, Agenda Public (Mar. 5, 2013),
       http://esbpublic.springfield.k12.il.us/ (posting the agenda and the entire Agreement–which
       included the aforementioned signatures–on the Board’s website calendar).
¶7         The agenda for the March 5, 2013, public meeting listed numerous items that the Board
       was scheduled to consider. The first item under the heading, “Roll Call Action Items,” was
       item 9.1, entitled, “Approval of a Resolution regarding the *** Agreement *** Between
       Superintendant *** Milton *** and the Board.” At the March 2013 public meeting, the
       Board’s president introduced that agenda item, as follows:
               “I have item 9.1, approval of a resolution regarding the *** Agreement. The Board
               president recommends that the Board *** vote to approve the *** Agreement between
               *** Milton *** and the Board.”

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       Thereafter, the Board (1) approved the Agreement by a six-to-one vote and (2) added the date
       March 5, 2013, to the signatures of the six approving Board members.
¶8         In June 2013, Beck, acting on behalf of the local newspaper, the State Journal Register,
       sent an e-mail message to the AG’s public access counselor (PAC), alleging that the Board
       violated the Act. Specifically, Beck asserted, as follows:
               “On [January] 31, 2013, members of the *** Board *** signed a separation agreement
               *** with the district’s superintendant, *** Milton. The Board signed this agreement,
               which includes terms of compensation, without taking a public vote beforehand. ***
               [A] signed agreement is an approved agreement, and signing the agreement before
               voting publically violates the *** Act, prompting this request for review.”
       (Contrary to Beck’s assertion and as previously noted, Milton signed the Agreement on
       January 31, 2013, and six of seven Board members signed the Agreement on February 4, 2013,
       which the Board later postdated March 5, 2013.)
¶9         Following an investigation, the AG issued a binding opinion in May 2013, concluding, in
       pertinent part, as follows:
                   “(8) *** The signing of the *** Agreement by six of the Board’s seven members
               during the February 4, 2013, closed session *** did constitute the taking of a final
               action in violation of section 2(e) of [the Act (5 ILCS 120/2(e) (West 2012))].
                   (9) Assuming arguendo, that the Board could have effectively ratified its improper
               final action by voting on the separation agreement at a properly noticed open meeting,
               the Board would nonetheless have violated section 2(e) of [the Act] by voting to
               approve the *** Agreement at its March 5, 2013, meeting because it failed to
               adequately inform the public of the nature of the matter under consideration or the
               business being conducted.”
¶ 10       In June 2013, the Board filed a complaint for administrative review under section 7.5 of the
       Act (5 ILCS 120/7.5 (West 2012)), challenging the AG’s aforementioned conclusions.
       Following a hearing on the Board’s complaint, the circuit court entered an order in November
       2013, finding that the AG erred by concluding that the Board took “final action” when six
       Board members signed the Agreement during a February 4, 2013, closed session. The court
       determined, instead, that the Board’s final action occurred on March 5, 2013, when the Board
       members voted to approve the Agreement during the public meeting. The court declined to
       reach the merits of the AG’s conclusion regarding the inadequacy of the Board’s efforts to
       inform the public of the Agreement prior to that public meeting, opting, instead, to remand the
       matter so that the Board could respond to that claim.
¶ 11       In April 2014–after the parties complied with the circuit court’s order–the AG issued a
       second binding opinion, concluding, in pertinent part, as follows:
                   “The [AG] finds that the Board violated section 2(e) of [the Act] by voting to
               approve the *** Agreement during its March 5, 2013, meeting without adequately
               informing the public of the business being conducted. The [AG] concludes that the
               Board’s posting of the *** Agreement on its website did not constitute a public recital
               during an open meeting within the scope of section 2(e) of [the Act]. Further, the few
               comments made during the discussion leading to the vote were insufficient to provide
               the public with information from which it might comprehend the purpose and effect of
               the Board’s action.”


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¶ 12       After the AG issued its second binding opinion, the matter returned to the circuit court. In
       September 2014, the court entered an order reversing the AG’s second binding opinion,
       reasoning, in part, as follows:
                   “The [AG’s] opinion significantly expands the requirements of the *** Act,
              changing the requirement of public notice from advising of the nature of the final
              action to be taken to a requirement that the public body explain the significance of the
              final action to be taken. There is no authority which would support such an expansion
              of the requirements of section 2(e) of the *** Act.”
¶ 13       This appeal followed.

¶ 14                                           II. ANALYSIS
¶ 15                         A. The Applicable Portions of the Statute at Issue
¶ 16       Section 1 of the Act provides, as follows:
               “Policy. It is the public policy of this State that public bodies exist to aid in the conduct
               of the people’s business and that the people have a right to be informed as to the
               conduct of their business. In order that the people shall be informed, the General
               Assembly finds and declares that it is the intent of this Act to ensure that the actions of
               public bodies be taken openly and that their deliberations be conducted openly.
                   The General Assembly further declares it to be the public policy of this State that its
               citizens shall be given advance notice of and the right to attend all meetings at which
               any business of a public body is discussed or acted upon in any way.” 5 ILCS 120/1
               (West 2012).
¶ 17       Section 2(c) of the Act delineates numerous exceptions that permit closed sessions under
       narrowly construed circumstances. See 5 ILCS 120/2(c) (West 2012). Specifically, section
       2(c)(1) of the Act provides the following exception:
                   “(c) Exceptions. A public body may hold closed meetings to consider the following
               subjects:
                       (1) The appointment, employment, compensation, discipline, or dismissal of
                   specific employees of the public body ***.” 5 ILCS 120/2(c)(1) (West 2012).
¶ 18       Section 2(e) of the Act provides, as follows:
               “Final Action. No final action may be taken at a closed meeting. Final action shall be
               preceded by a public recital of the nature of the matter being considered and other
               information that will inform the public of the business being conducted.” 5 ILCS
               120/2(e) (West 2012).

¶ 19                              B. The Appropriate Standard of Review
¶ 20       Judicial review pursuant to the Administrative Review Law (735 ILCS 5/3-101 to 3-113
       (West 2012)) “requires this court to review all questions of law and fact presented by the
       record in relation to the administrative agency’s decision and not the decision of the *** circuit
       court.” Senno v. Department of Healthcare & Family Services, 2015 IL App (1st) 132837,
       ¶ 33. The applicable standard of review depends on whether the issue involves a question of
       fact, a question of law, or a mixed question of law and fact. City of Belvidere v. Illinois State
       Labor Relations Board, 181 Ill. 2d 191, 204, 692 N.E.2d 295, 302 (1998).


                                                     -4-
¶ 21       In City of Champaign v. Madigan, 2013 IL App (4th) 120662, ¶¶ 25-26, 992 N.E.2d 629,
       this court outlined the following differing standards of review:
                    “An agency’s findings and conclusions of fact are deemed prima facie true and
               correct and will be overturned only if they are against the manifest weight of the
               evidence. [Citation.] A determination is against the manifest weight of the evidence if
               the opposite conclusion is clearly evident. [Citation.]
                    [W]here the historical facts are admitted or established, the controlling rule of law
               is undisputed and the issue is whether the facts satisfy the statutory standard, the case
               presents a mixed question of fact and law for which the standard of review is clearly
               erroneous. [Citation.] An agency’s decision is clearly erroneous when the reviewing
               court is left with a firm and definite conviction that the agency has committed a
               mistake. [Citation.]” (Internal quotation marks omitted.)
¶ 22       In her brief to this court, the AG asserts that to the extent she interpreted certain statutory
       provisions of the Act, those interpretations are entitled to substantial weight and deference
       because of her role in administering and enforcing the Act. However, we note that this court
       affords an administrative agency such deference when the agency is interpreting an ambiguous
       statutory provision that it is charged with enforcing. See Crittenden v. Cook County Comm’n
       on Human Rights, 2013 IL 114876, ¶ 19, 990 N.E.2d 1161 (“We ‘give substantial weight and
       deference to an interpretation of an ambiguous statute by the agency charged with
       administering and enforcing that statute.’ ” (quoting People ex rel. Birkett v. City of Chicago,
       202 Ill. 2d 36, 46, 779 N.E.2d 875, 881 (2002))).
¶ 23       In this case, the parties’ dispute does not concern an ambiguity in the applicable provisions
       of the Act but, instead, pertains to the propriety of the AG’s interpretation of the plain language
       of section 2(e) of the Act as applied to the aforementioned undisputed facts. In this regard, the
       supreme court has held that where the historical facts are admitted or established, but a dispute
       exists “as to whether the governing legal provisions were interpreted correctly by the
       administrative body, the case presents a purely legal question for which [the] review is
       de novo.” Goodman v. Ward, 241 Ill. 2d 398, 406, 948 N.E.2d 580, 585 (2011). Because our
       review concerns whether the AG properly determined that the Board’s procedures failed to
       comply with section 2(e) of the Act, our review is de novo, which the supreme court has
       characterized as “independent and not deferential.” (Internal quotation marks omitted.) Id.

¶ 24                       C. The Correctness of the AG’s Binding Opinions
¶ 25      The AG argues that she properly concluded that the Board failed to comply with the Act.
       Specifically, the AG contends that the (1) signing of the Agreement during the February 4,
       2013, closed session constituted a final action in violation of section 2(e) of the Act and (2) the
       March 5, 2013, public vote approving the Agreement did not constitute a valid final action
       because the Board did not adequately inform the public as required by section 2(e) of the Act.
       We address the AG’s contentions in turn.

¶ 26               1. The Signing of the Agreement During a Closed Board Session
¶ 27      In support of her first claim, the AG relies on Lawrence v. Williams, 2013 IL App (1st)
       130757, 988 N.E.2d 1039, and Howe v. Retirement Board of the Firemen’s Annuity & Benefit
       Fund, 2013 IL App (1st) 122446, 996 N.E.2d 664. However, the AG’s reliance is misplaced.


                                                    -5-
¶ 28       In Lawrence, a three-member electoral board voted unanimously to invalidate nomination
       papers for three prospective candidates running for the local school board. Lawrence, 2013 IL
       App (1st) 130757, ¶¶ 4-7, 988 N.E.2d 1039. The electoral board then announced that decision
       at an “open proceeding.” Id. ¶ 7. Upon reconvening at a public meeting four days later, one of
       the board members (1) presented the electoral board’s written decision on the matter and (2)
       announced that the other two board members, who were not present, had already signed the
       written ruling. Id. ¶ 8. The board member then added her approving signature to the written
       decision and thereafter ended the public meeting. Id. On appeal, the appellate court dismissed
       the case for lack of jurisdiction because no final action had been taken by the electoral board.
       Id. ¶ 23. Specifically, the Lawrence court concluded that although the electoral board
       attempted to comply with section 2(e) of the Act by later taking final action at a public forum
       on the electoral board’s written decision, it lacked a quorum in violation of section 2.01 of the
       Act (5 ILCS 120/2.01 (West 2010)). Lawrence, 2013 IL App (1st) 130757, ¶ 21, 988 N.E.2d
       1039. Thus, no final action occurred.
¶ 29       In Howe, a retirement board considered a motion to grant the plaintiff’s application for a
       duty-disability benefit. Howe, 2013 IL App (1st) 122446, ¶ 2, 996 N.E.2d 664. The retirement
       board later held an administrative hearing on that application and after considering evidence,
       recessed into a closed session. Id. ¶ 13. After reconvening from the closed session, five of
       seven board members voted to deny the plaintiff’s application. Id. The retirement board later
       provided the plaintiff a written decision, which was back-dated to the day the board voted to
       deny the plaintiff’s application, explaining the basis for its decision. Id. ¶ 14. The appellate
       court reversed the circuit court’s ruling–which affirmed the retirement board’s
       determination–concluding, in pertinent part, that the retirement board did not take final action
       on its written decision as required by section 2(e) of the Act. Id. ¶ 2. On remand, the Howe
       court directed the board to “take valid final action by conducting a proper affirmative vote on a
       specific written decision.” Id.
¶ 30       In this case, the specific issue before us does not concern the Board’s failure to take final
       action by voting on a written instrument of public interest at a public forum. Indeed, the parties
       do not dispute that on March 5, 2013, the Board held a public meeting where it voted to
       approve the Agreement by a six-to-one margin. Instead, the AG’s narrow claim focuses on the
       Board’s action at the February 4, 2013, closed session. In this regard, the AG contends that
       despite the March 5, 2013, public meeting, the Board’s final action actually occurred during
       the February 4, 2013, closed session when six of seven Board members signed the Agreement.
¶ 31       The AG’s reliance on Lawrence and Howe, however, militates against that stance. In
       Lawrence, 2013 IL App (1st) 130757, ¶ 21, 988 N.E.2d 1039, the appellate court noted that
       final actions “had to occur in an open meeting with a quorum present.” Similarly, in Howe,
       2013 IL App (1st) 122446, ¶ 26, 996 N.E.2d 664, the appellate court concluded that “[n]o
       public body in Illinois subject to the *** Act can take final action by merely circulating some
       document for signature and not voting on it publicly.” In other words, a “final action,” as
       contemplated by the Act, can only occur at a properly conducted public forum where the public
       entity expresses its opinion–usually in the form of a vote or signature–on a public issue. Thus,
       we disagree with the AG’s interpretation. The Board members’ act of signing the Agreement
       during a closed session could not have constituted a “final action” within the meaning of
       section 2(e) of the Act. Our conclusion is hardly new or novel.



                                                   -6-
¶ 32        In Grissom v. Board of Education of Buckley-Loda Community School District No. 8, 55
       Ill. App. 3d 667, 370 N.E.2d 1298 (1977), rev’d on other grounds, 75 Ill. 2d 314, 388 N.E.2d
       398 (1979), the school board dismissed a teacher under the following circumstances:
                “[T]he board deliberated in closed session, prepared a written motion, voted on it, and
                individual members signed the resolution. Thereafter, the board returned to open
                session, plaintiff waived reading the motion, and a roll call vote of the board was
                taken.” Id. at 675, 370 N.E.2d at 1304 (Grissom I).
       In affirming the circuit court’s finding that the aforementioned procedure the school board
       employed did not violate the Act, we concluded that the roll call was the board’s final action
       and, as a result, no violation of the statute occurred. Id.
¶ 33        After granting the plaintiff’s petition for leave to appeal in Grissom I, the supreme court
       addressed the plaintiff’s claim under the Act, reasoning, as follows:
                    “The plaintiff’s assertion that the board took final action in closed session in
                violation of section 2 of the *** Act [citation] must also fail. Section 2 prohibits any
                final action being taken in closed session. It does not prohibit ‘holding closed sessions
                to consider information regarding appointment, employment or dismissal of an
                employee.’ The record reveals only that the board recessed to draw up the signed
                findings in closed session. Upon returning to open session, each board member
                publicly indicated his vote on the dismissal by acknowledging his signature on the
                findings. This is not in violation of the statutes, and is similar to Jewell v. Board of
                Education[, 19 Ill. App. 3d 1091, 1094-95, 312 N.E.2d 659, 662-63 (1974)], where the
                board went into executive session, was polled and found to unanimously agree not to
                rehire a teacher, entertained a motion to that effect, prepared the motion, and returned
                to open session where the motion was read. Then each member, by roll call, voted in
                favor of the motion. The appellate court found this consistent with the statute and so do
                we.” Grissom, 75 Ill. 2d at 326-27, 388 N.E.2d at 403.
       See also Kosoglad v. Porcelli, 132 Ill. App. 3d 1081, 1092, 478 N.E.2d 489, 496 (1985)
       (“[T]he Act allows a public body to consider dismissal matters in a closed session, so long as
       their final action is taken at an open meeting, as occurred here.”); Jewell, 19 Ill. App. 3d at
       1095, 312 N.E.2d at 663 (“[T]he fact that there were two votes taken, one at the closed and one
       at the open session, should not be considered a violation of the [Act]. The crucial fact is that the
       final vote was taken at an open session.”).
¶ 34        We conclude that the Board appropriately considered Milton’s dismissal at the February 4,
       2013, closed session as permitted by section 2(c)(1) of the Act. Accordingly, we reject the
       AG’s contention that the signing of the Agreement during the February 4, 2013, closed Board
       session constituted an impermissible final action in violation of section 2(e) of the Act.

¶ 35                                  2. The Board’s Public Notice
¶ 36       The AG also contends that the March 5, 2013, public vote approving the Agreement did not
       constitute a valid final action because the Board did not adequately inform the public as
       required by section 2(e) of the Act. The AG’s contention proceeds in two distinct parts: (1)
       “the record shows that the Board considered the agreement to be in effect before the purported
       March 5, 2013, approval at the [public] meeting” and (2) the Board’s vote did not constitute a



                                                    -7-
       valid final action because the Board did not adequately inform the public. We disagree with
       both of the AG’s assertions.
¶ 37       As previously noted, section 2(e) of the Act provides, as follows:
               “Final Action. No final action may be taken at a closed meeting. Final action shall be
               preceded by a public recital of the nature of the matter being considered and other
               information that will inform the public of the business being conducted.” 5 ILCS
               120/2(e) (West 2012).
¶ 38       To the extent the AG asserts that the Board’s subjective belief regarding the effective date
       of the Agreement applies to an analysis under section 2(e) of the Act, we reject this premise.
       The AG fails to cite competent authority for this proposition, and even assuming the AG was
       correct, this court is not bound by the Board’s subjective beliefs. The sole issue before us
       concerns whether the public was adequately informed about the Agreement prior to the
       Board’s March 5, 2013, approval under the plain meaning of section 2(e) of the Act. We
       conclude that, on this record, the public was so informed.
¶ 39       In this case, the Board’s agenda for the March 5, 2013, public meeting was posted to the
       Board’s public website. The first item under the heading, “Roll Call Action Items,” was
       described, as follows: “Approval of a Resolution regarding the *** Agreement *** Between
       *** Milton *** and the Board.” Underneath that description appeared a link to an attachment.
       Selecting that link transferred the interested party to another portion of the Board’s website
       where the entire Agreement was displayed. The provided Agreement contained the pertinent
       details regarding the parties’ respective duties, rights, and obligations. Interested parties could
       then view, print, or download the Agreement. At the March 5, 2013, meeting, the president of
       the Board introduced the Agreement consistent with the general terms of the agenda and
       recommended that the Board approve the item.
¶ 40       In her brief to this court, the AG posits that the attending public was “ill informed about the
       nature of [the] business the Board” conducted because “they were not given details about the
       *** Agreement at the March 5, 2013, meeting.” We note that the AG does not support this
       claim with competent authority or elaborate further as to what additional information the
       Board could have provided the public that would have constituted sufficient notice under her
       interpretation of section 2(e) of the Act.
¶ 41       In addition, the AG directs our attention to Public Act 85-1355, which added the final
       sentence to section 2(e) of the Act. See Pub. Act 85-1355, § 1 (eff. Jan. 1, 1989) (amending Ill.
       Rev. Stat. 1987, ch. 102, ¶ 42(e)). Specifically, the AG urges this court to consider extrinsic
       evidence from the amendment’s sponsor regarding that legislator’s intent. However, when the
       statutory language is clear and unambiguous–as in this instance–we need not resort to extrinsic
       evidence to aid our analysis. See People v. Eppinger, 2013 IL 114121, ¶ 21, 984 N.E.2d 475
       (“Where the statutory language is clear and unambiguous, we will apply the statute as
       written.”). Moreover, on the issue of legislative history, this court has previously stated the
       following:
               “ ‘[L]egislators do not make laws by making speeches on the floor of the legislative
               chamber or by writing memos for committee meetings. They make laws by majority
               vote on a specifically worded bill that has been read three times before each house and
               distributed to each legislator. (Ill. Const. 1970, art. IV, §§ 8(c), (d).) Neither the
               disclosed nor undisclosed intent of a legislator or lobbyist becomes law; only the bill as
               it reads when passed becomes law.’ ” (Emphasis in original.) People v. Ferrell, 277 Ill.

                                                    -8-
               App. 3d 74, 77, 659 N.E.2d 992, 994-95 (1995) (quoting Town of the City of
               Bloomington v. Bloomington Township, 233 Ill. App. 3d 724, 736, 599 N.E.2d 62, 70
               (1992)).
¶ 42       We agree with the circuit court’s assessment that the AG’s interpretation of section 2(e) of
       the Act would impose a greater burden than the plain language of the statute requires. As
       written, section 2(e) of the Act requires that the public entity advise the public about the
       general nature of the final action to be taken and does not, as the AG claims, require that the
       public body provide a detailed explanation about the significance or impact of the proposed
       final action.
¶ 43       Accordingly, we conclude that (1) the AG erred when she concluded that the Board’s
       approval of the Agreement at issue failed to comply with section 2(e) of the Act and (2) the
       circuit court ruled correctly by reversing the AG’s binding opinions.

¶ 44                                     III. CONCLUSION
¶ 45      For the foregoing reasons, we affirm the circuit court’s judgment.

¶ 46      Affirmed.




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