Per my previous promise, the following OMA complaint was filed against the D304 School Board this morning. Enjoy!
March 22, 2021
Public Access Counselor
Office of the Illinois Attorney General
500 S. 2nd Street
Springfield, Illinois 62701
Jamie Mosser, State’s Attorney
Kane County State’s Attorney’s Office
37W777 Route 38
St. Charles, Illinois 60175
Dear PAC and Ms. Mosser:
This letter is intended to serve as an official Open Meetings Act violation complaint concerning the Geneva, Illinois D304 School Board.
1. The details of the meeting
On March 4, 2021, from 6 p.m. to 7:30 p.m., the Geneva School District’s COVID “task force” held a virtual/in-person meeting where the public was barred from attending. In fact, the School Board President wouldn’t divulge the location of the in-person portion the meeting so the public wouldn’t be able to attend or protest.
Neither virtual nor in-person public comment was permitted at any time during the task force meeting. The public’s only option was to submit questions beforehand and the task force unilaterally determined which would and would not be answered.
2. The first OMA violation
Among the in-person task force meeting attendees were:
- Superintendent Kent Mutchler, who by law, must attend
- School Board President Taylor Egan, and
- School Board member Mike Lamb
Since the meeting video isn’t very clear in this regard, I confirmed those attendees with D304 Communications Officer Laura Sprague.
The OMA statute explicitly states that if the majority of a quorum of the deliberatory members of a government body get together by any means to discuss city/school/county business of any kind, all of the OMA rules apply. Since the D304 board consists of seven members, their majority of a quorum is three, and since the Superintendent is clearly a deliberatory member of that body, that adds up to an OMA violation.
Please note that the statute DOES NOT refer to “elected members” or “appointed members,” it specifically refers to “deliberatory members,” and that’s the critical distinction here.
This is the method by which the majority of a quorum is determined on every city council and county board throughout the state of Illinois. Despite the mayor/chairman rarely being afforded an opportunity to vote, the mayor’s/chairman’s presence ALWAYS counts towards that majority of quorum total. If that were not the case, the mayor/chairman could legally hold all manner of clandestine meetings to freeze his or her vocal opponents out of the policy making process.
3. The second OMA violation
This one is the more egregious one.
Prior to 2020, the only legal exception that allowed a city councilman/board member/school board member to remotely participate in a meeting of said body is traveling as a requirement of their employment. But the pandemic changed all that. Now, not only does the law allow for remote attendance, but until very recently, it’s been the norm.
So, what we have in this March 4 task meeting case is three deliberatory members in the same room with the five remaining board members watching the meeting live through the D304 Board’s YouTube channel. They may not have been provided with a “Zoom seat,” but they were observing the proceedings as they unfolded, and that’s the very definition of remote attendance.
As far as the lack of a Zoom seat goes, with the exception of the president, no board member is required to verbally participate in any official proceeding, so their limited participation is utterly immaterial.
Think about it! If those five board members were huddled around a speakerphone on a table in another room to listen to the task force meeting as it progressed, that would be a blatant OMA violation. The same would be true if those five board members were listening to the meeting on five separate phones in five separate buildings.
As the law is written, it’s up to the D304 school board to rebut my contention that this was the case – there’s no burden of proof required on the complainant’s part. They have to prove that those board members WEREN’T watching the task force meeting if they want to avoid this too-obvious OMA violation.
In summation, on March 4, 2021, the D304 school board willfully engaged in two separate violations of the Open Meetings Act. The first occurred when three deliberatory members were in the same room, and the second took place when the remaining board members attended the meeting remotely.
That means the Board’s failure to permit public attendance and commentary sealed the OMA violation deal.
And I applied the term “willfully” because I made the D304 Board aware of both pending violations via email well before March 4th and they chose to ignore me. My best guess is neither the PAC nor the Kane County State’s Attorney’s Office can do anything but offer an opinion on this issue, but if sanctions are possible, this would certainly be the case that would warrant them.
Thank you for your swift attention to this OMA matter.
CC: D304 School Board
Superintendent Kent Mutchler