Attorney General Determination On Hinsdale High School District 86 Closed Meeting

OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS
KWAME RAOUL
ATTORNEY GENERAL
November 15, 2023
Via electronic mail

Mr. Dale E. Kleber
Via electronic mail

Mr. Steven M. Richart
Hodges, Loizzi, Eisenhammer, Rodick & Kohn LLP
500 Park Boulevard, Suite 1000
Itasca, Illinois 60143
[email protected]
RE: OMA Request for Review 2022 PAC 73515
Dear Mr. Kleber and Mr. Richart:
This determination is issued pursuant to section 3.5(e) of the Open Meetings Act
(OMA) (5 ILCS 120/3.5(e) (West 2022)). For the reasons explained below, the Public Access
Bureau concludes that the Hinsdale Township High School District 86 Board of Education
(Board) improperly discussed certain matters in closed session during its August 29, 2022,
special meeting.
BACKGROUND
On September 16, 2022, this office received Mr. Dale E. Kleber's Request for
Review alleging that the Board improperly discussed setting performance goals for then-
Superintendent Tammy Prentiss during a closed session at its August 29, 2022, special meeting.
Mr. Kleber alleged that this discussion exceeded the scope of section 2(c)(1) of OMA (5 ILCS
120/2(c)(1) (West 2022)), which permits public bodies to hold closed meetings to consider, in
pertinent part, "[t]he appointment, employment, compensation, discipline, performance, or dismissal
of specific employees[.]" On September 27, 2022, this office forwarded a copy of the Request for
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Mr. Dale E. Kleber
November 15, 2023
Page 2
Review to the Board and asked it to provide this office with copies of its August 29, 2022,
meeting agenda, open and closed session minutes, and closed session verbatim recording for this
office's confidential review, together with a written response to Mr. Kleber's allegation. On
October 11, 2022, this office received the requested materials, including a complete response for
this office's confidential review and a redacted version for this office to forward to Mr. Kleber.1
On October 12, 2022, this office forwarded a copy of the Board's response to Mr. Kleber; he
replied on October 21, 2022.
DETERMINATION
The intent of OMA is "to ensure that the actions of public bodies be taken openly
and that their deliberations be conducted openly." 5 ILCS 120/1 (West 2022). Section 2(a) of
OMA (5 ILCS 120/2(a) (West 2022)) provides that all meetings of a public body shall be open to
the public unless the subject of discussion falls within one of the exceptions set out in section
2(c) of OMA (5 ILCS 120/2(c) (West 2022)), and the meeting is closed in accordance with
section 2a of OMA (5 ILCS 120/2a (West 2022)). The section 2(c) exceptions are to be "strictly
construed, extending only to subjects clearly within their scope." 5 ILCS 120/2(b) (West 2022).
In construing section 2(c)(1) of OMA, the Attorney General has concluded that
the "purpose of the [2(c)(1)] exception is to protect the identity and reputation of a person[.]"
1974 Ill. Att'y Gen. Op. No. S-726, issued March 22, 1974, at 128. The Attorney General has
further explained in binding opinions that "the exception is intended to permit public bodies to
candidly discuss the relative merits of individual employees, or the conduct of individual
employees." Ill. Att'y Gen. Pub. Acc. Op. No. 15-005, issued August 4, 2015, at 6 (quoting Ill.
Att'y Gen. Pub. Acc. Op. No. 12-011, issued July 11, 2012, at 3). The scope of the exception is
limited to discussion of "the hiring merits, performance, conduct or terms of employment of
individual employees." Ill. Att'y Gen. PAC Req. Rev. Ltr. 12658, issued July 7, 2011, at 4.
As the Board noted in its non-confidential response, the Illinois Appellate Court
has explained how discussion that intertwines these topics with efforts to set related goals may
nonetheless fall within the section 2(c)(1) exception:
Statutes must be given sensible interpretation by the courts, and a

strict construction means only that it must be confined to such
subjects or applications as are obviously within its terms and
purposes, and it does not require such an unreasonably technical
1
See 5 ILCS 120/3.5(c) (West 2022) ("The Public Access Counselor shall forward a copy of the
answer or redacted answer, if furnished, to the person submitting the request for review.").
Mr. Dale E. Kleber
November 15, 2023
Page 3
construction that the words used cannot be given their fair and
sensible meaning in accord with the obvious legislative intent.
Gosnell v. Hogan, 179 Ill.App.3d 161, 171 (5th Dist. 1989).
Continuing, the Gosnell court held:
Common experience dictates that discussions of matters relating to

complaints against an officer and goals developed in attempting to
resolve the complaints can become one and the same. An attempt
to discuss only the complaints in closed session and then the
proposed goals in open session would be tedious and frustrating
when the goals are in direct response to and interrelated with
the complaints they are intended to resolve. In order to discuss
the goals effectively, it is necessary to consider simultaneously
the complaints which prompted the need for the goals. Gosnell,
179 Ill. App. 3d at 175-76. (Emphasis added.)
This office has similarly determined that topics that, independently, would not fall within the
scope of section 2(c)(1) could permissibly be discussed in closed session if they "provided
context that was needed to fully consider the specific individual's employment, performance or
compensation[.]" Ill. Att'y Gen. PAC Req. Rev. Ltr. 69573, issued May 12, 2022, at 4.
However, this office has also distinguished Gosnell, where the discussion of a
"superintendent's goals for his performance were permissibly discussed in closed session because
they were inextricably intertwined with the discussion concerning his performance[,]" from
closed session discussions where "the primary focus * * * was organizational change, which is
not among OMA's exceptions to the general requirement that public bodies openly discuss public
business." Ill. Att'y Gen. PAC Req. Rev. Ltr. 27199, issued June 3, 2016, at 4. Similarly, this
office has determined that, while a Park District Board could properly consider whether its
executive director fulfilled his directive of creating a succession plan pursuant to section 2(c)(1),
"subjects such as the timing of the succession plan and budgetary considerations, were separate
and distinct from discussions of the performance and relative merits of specific employees." Ill.
Att'y Gen. PAC Req. Rev. Ltr. 54122, issued May 31, 2019, at 4.
Mr. Dale E. Kleber
November 15, 2023
Page 4
In its non-confidential response to this office, the Board stated that the
Superintendent was "under a multi-year contract, which includes baseline performance goals
under Section 23.8 of the School Code,2 but which also allows the Board to establish additional
performance goals[.]"3 The Board argued that the entirety of its closed session discussion
"inherently and inextricably involved detailed and confidential discussions regarding the
information."4 The Board noted that it
discussed "very personal topics" and that it "discussed certain criticisms and made certain
critiques."5 In his reply, Mr. Kleber noted that the District's policies lay out two separate
processes for the superintendent's evaluation and goal setting. Mr. Kleber argued:
It is not essential to discuss a Superintendent's past performance

when a board is establishing forward-looking, measurable and
specific objectives for a Superintendent relating to academic
performance targets, student special needs, teacher development,
union negotiations, finance and budgetary matters, employment
and regulatory issues, facilities and infrastructure, maintenance,
safety and security, transportation, communications, community
relations, athletics, material contracts, purchasing and key
vendors.6
2
Section 23.8 of the School Code (105 ILCS 5/10-23.8 (West 2022)) provides, in relevant part:
Performance-based contracts shall be linked to student performance

and academic improvement within the schools of the districts. No performance-
based contract shall be extended or rolled-over prior to its scheduled expiration
unless all the performance and improvement goals contained in the contract
have been met. Each performance-based contract shall include the goals and
indicators of student performance and academic improvement determined and
used by the local school board to measure the performance and effectiveness of
the superintendent and such other information as the local school board may
determine.
3
Letter from Letter from Steven M. Richart, Hodges, Loizzi, Eisenhammer, Rodick & Kohn LLP,
to Benjamin J. Silver, Assistant Attorney General, Public Access Bureau (October 11, 2022), at 6.
4
Letter from Steven M. Richart, Hodges, Loizzi, Eisenhammer, Rodick & Kohn LLP, to Benjamin
J. Silver, Assistant Attorney General, Public Access Bureau (October 11, 2022), at 2.
5
Letter from Steven M. Richart, Hodges, Loizzi, Eisenhammer, Rodick & Kohn LLP, to
Benjamin J. Silver, Assistant Attorney General, Public Access Bureau (October 11, 2022), at 3.
6
Letter from Dale E. Kleber, Attorney-at-Law, to Benjamin J. Silver, Assistant Attorney General,
Office of the Attorney General of the State of Illinois, Public Access Bureau (October 21, 2022), at 4.
Mr. Dale E. Kleber
November 15, 2023
Page 5
While it may not be essential for the Board to simultaneously discuss an employee's past
performance and goal setting, the precedent established in Gosnell and this office's previous
determinations make clear that such discussion of those topics, when intertwined, is permissible
under the section 2(c)(1) exception to the general requirement that public bodies conduct public
business openly. The circumstances of this matter, however, are factually distinguishable from
Gosnell, where the court held the closed session discussion of goals was permissible because the
goals were "in direct response to and interrelated with the complaints they are intended to
resolve." Gosnell, 179 Ill. App. 3d at 175. Although this office agrees with the Board's assertion
that "it is abundantly clear that the Board utilized and referred to the Superintendent's evaluation
in their discussions[ ]" of creating additional performance goals,7 various other topics related to
the goals that do not bear on the Superintendent's performance were considered and addressed.
The discussion of goals was not so intertwined with the Superintendent's performance to
encompass the entire closed session discussion.
This office's confidential review of the verbatim recording of the closed session,
in conjunction with the supporting documentation provided by the Board, confirms that portions
of the Board's August 29, 2022, closed session inextricably intertwined goal-setting with the
Superintendent's current and prior performance evaluation. The Board's discussion during the
portions of the recording provided to this office from 10:40 to 36:20, 43:00 to 50:35, 54:25 to
57:00, 1:36:20 to 1:44:55, and 2:25:45 to 2:56:45 focused on the Superintendent's performance
in conjunction with formulating goals, including certain criticisms or critiques, as described in
the Board's response. Because these portions of the Board's August 29, 2022, closed session
concerned the performance of a specific employee, they fell within the scope of section 2(c)(1)
of OMA.
However, other portions of the meeting almost exclusively concerned general

goal-setting for the superintendent role and other District concerns that were not intertwined with
discussion of the former superintendent's performance. While these matters are undoubtedly
related to the superintendent's job duties and the members of the Board may have considered past
evaluations as inputs, these portions of the closed session do not reflect on the performance of
the District's former superintendent within the meaning of section 2(c)(1). Rather, these portions
of the discussion concern setting goals to be considered in future evaluations and are separate
and distinct from discussions of the performance and relative merits of specific employees.
Therefore, the Public Access Bureau concludes that the Board exceeded the scope of the section
2(c)(1) exception in discussing these matters.
7
Letter from Letter from Steven M. Richart, Hodges, Loizzi, Eisenhammer, Rodick & Kohn LLP,
to Benjamin J. Silver, Assistant Attorney General, Public Access Bureau (October 11, 2022), at 6.

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Attorney General Determination On Hinsdale High School District 86 Closed Meeting

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OFFICE OF THE ATTORNEY GENERAL

November 15, 2023

Via electronic mail

Via electronic mail

RE: OMA Request for Review 2022 PAC 73515

Dear Mr. Kleber and Mr. Richart:

Statutes must be given sensible interpretation by the courts, and a

Continuing, the Gosnell court held:

Common experience dictates that discussions of matters relating to

It is not essential to discuss a Superintendent's past performance

Performance-based contracts shall be linked to student performance

However, other portions of the meeting almost exclusively concerned general

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