The Examiner U-46 News Feed
Policy change debate continues in Dist. U-46 - What is the public entitled to know?
By Seth Hancock
The Board of Education in School District U-46 continued its discussion on changes to its policy, Section 2.201, at a committee meeting on Monday, Sept. 19.
The contention ultimately came down to one side wanting to present the philosophy of open government compared to the other side seeking reasons to continue secrecy. Board members Traci Ellis and Cody Holt did not attend the meeting.
“Keep in mind that there’s no legal requirement to hold any meetings in closed session, that we could weekly have all our meetings in open,” said board member Jeanette Ward. “It doesn’t say you have to have a closed session meeting for x reasons.”
Last year the board’s majority of Ellis, Sue Kerr, Veronica Noland and Donna Smith voted to change its policy in order to be able to deny Ward, who was newly elected at the time, from accessing previous closed session recordings. The board’s majority claimed the ability to dictate access to those recordings based on an apparent misinterpretation of the Open Meetings Act.
Since then House Bill 4630 has been unanimously approved by the state’s General Assembly and signed by Gov. Bruce Rauner clarifying that elected officials always had the right to unfettered access to such recordings making this current change to U-46 policy necessary.
Now that access to such recordings is clear for board members, Ward hopes the public will now have more ability to listen to such recordings if they do not legally need confidentiality.
Miguel Rodriguez, the district’s chief legal counsel, said there are laws restricting disclosure of certain information discussed in closed session, such as student identities which may be discussed for disciplinary issues, which could lead to legal liabilities for the district if disclosed. But Ward noted that “I’m just trying to give a philosophy or perspective” and “I’m not suggesting we violate” the law and reveal any information legally required to remain confidential.
Smith appeared to have gotten defensive in wanting to keep secrecy as the norm for this board. Smith has been on the board since 2001.
“I don’t think we do hold closed session meetings except for those things that would become liabilities,” Smith said.
Ward noted there would be no legal liabilities if board self-evaluations were released, but Smith said because it’s legally allowed to be done in closed session that’s reason to not let the public have access.
“No, it’s not required but it is legal,” Smith said. “So that’s just a disagreement between you and me. The law says nothing, it says nothing about it one way or another.”
Ward replied: “All I’m saying is we wouldn’t be in legal trouble if we released them”
Smith had to agree saying “you’re absolutely right” and that the self-evaluations can be done in public, but “it doesn’t mean the old boards were wrong for holding it in closed [session].”
Ward never claimed that the previous board wasn’t allowed to hold those meetings in closed, and she said: “Correct, I’m not suggesting that, but we were talking about what could be released to the public. So that is one thing that could be released to the public without bringing legal consequences on ourselves.”
Board member Phil Costello said it comes down to interpretation.
“We can release anything we want to,” Costello said. “It would make no sense to release certain things but other things, board evaluations being one of them, could be released. But then it’s just a subject of a vote to say whether we want to release that portion of it.”
The importance of public access to such recordings, with the exception of anything legally required to remain confidential, seems to be born out of the way the U-46 board has operated.
The policies language was discussed regarding confidentiality, process for board member access and process for determining when recordings can be publicly released.
Currently the policy states that “recordings will not be released if confidentiality is necessary to protect either the public interest, the interest of the School District, or the privacy of an individual” but Ward wants to change it to “will not be released if it is determined that confidentiality is legally required.”
The current language is vague with no definition on what the public’s or school district’s interests are, and Ward asked: “Suppose those are at odds, or two of them are at odds, then which one takes precedent?”
Ward added: “If this came from the law, then I’m fine with leaving it in. But I don’t know that it came from the law, and I’m thinking that it didn’t.”
Noland skirted the problem Ward posed and said “I wonder if some of it is a judgment though, and here it’s not all of them but any of them,” and Ward replied “but which one is a higher priority?”
Kerr said that “safety and security-related issues” may need to be discussed in closed session to protect the public as well as union negotiations and employee matters.
“I guess I’d like a better idea of what would be legally required,” Kerr said.
Noland said it’s “too overwhelming” to review recordings every six months to determine if they can be publicly released, but Ward noted an idea Costello offered at an August committee meeting which was that at the conclusion of every closed session meeting the board determine what parts of that discussion could eventually be released.
Costello said “some things could be released and we’re just going to make an asterisk,” which Noland said she’s open to that but a process needs to be determined.
Regarding access for board members to the recordings, the board’s majority proposed requiring members to submit a request to listen with three to five business days notice to staff as well as going through the board’s president.
“The law does not require the request to come through the board president, and also the law does not prescribe a process,” Ward said. “And so I think that doesn’t need to be in our policy. We can have an agreement among ourselves.”
Ward noted that staff does not legally need to be there when board members listen to the recordings, but Noland said “in reality, we must have staff.”
Smith asked that requests to listen also go through the superintendent/CEO because everything the board does “should go through the superintendent,” but Costello and Ward both said these recordings are unique because they are board property. Smith justified going through the superintendent/CEO because that’s how it’s always been done.
Rodriguez pointed out that how the board has always done things has not been legally correct in at least one area as he said closed session minutes have never been reviewed in his over five years with the district.
“I would really like you to focus on the minutes because the minutes are legally required to be reviewed, and there are a number of years that [they] have not been reviewed,” Rodriguez said. “So the first legal requirement for the board is to review minutes.”