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01/24/89 David Gosnell Et Al., v. Kelly Hogan Et Al.

January 24, 1989





534 N.E.2d 434, 179 Ill. App. 3d 161, 128 Ill. Dec. 252 1989.IL.60

Appeal from the Circuit Court of Madison County; the Hon. Nicholas G. Byron, Judge, presiding.


PRESIDING JUSTICE WELCH delivered the opinion of the court. HARRISON and GOLDENHERSH,* JJ., concur.


This appeal is from a judgment entered July 2, 1987, in the circuit court of Madison County, denying plaintiffs' motion for preliminary injunction and petition for permanent injunction to prohibit defendants from continuing their alleged violations of the Open Meetings Act (Ill. Rev. Stat. 1987, ch. 102, pars. 41 through 46).

This action was initiated by plaintiffs David Gosnell and East Side Publications. East Side Publications is a publisher of a newspaper circulated in and near Granite City, Illinois, and David Gosnell is a reporter for the newspaper. The defendants are members of the Board of Education for Community Unit School District Number 9, with the exception of Gilbert Walmsley, who is the superintendent of schools. Plaintiffs filed suit seeking to enjoin defendants from holding closed meetings during which defendants allegedly discussed topics not within the exceptions enumerated in the Open Meetings Act.

During the school year, the Board of Education for Community Unit School District Number 9 (hereinafter the Board or Board of Education) holds regular public meetings on the first and third Tuesday of every month. Additional meetings are arranged when necessary. A written agenda is made available to the public prior to each meeting, whether regular or special. Each agenda makes reference to executive sessions, providing in general terms that during executive session, if necessary, the Board will discuss personnel, negotiations and legal matters. The executive sessions may occur as part of either a regular meeting or a special meeting. In either case, the executive sessions are not open to the public and often last longer than that portion of the meeting which is open to the public. Plaintiffs bring into issue three separate meetings, held on December 16, 1986, January 20, 1987, and February 3, 1987, in support of their claim that the bulk of the business undertaken by the Board of Education is executed during closed sessions in violation of the Open Meetings Act.

The first meeting at issue occurred on December 16, 1986. A special meeting was scheduled for this date to discuss the issuance of bonds and an amendment to the district's tax levy. During the open portion of this meeting, the employment of a certain architect was brought into issue, but was not discussed in detail because it was considered appropriate to hold the Discussion of this matter for closed session. When the Board of Education voted to retire into executive session, plaintiff David Gosnell, who was attending the meeting in his capacity as a reporter, objected to the Board of Education's closed Discussion concerning the hiring of an architect and stated that he considered this a violation of the Open Meetings Act. Gosnell's objection notwithstanding, the Board continued the meeting in executive session.

During the executive session on December 16, 1986, which lasted approximately 2 hours and 30 minutes, the Board and superintendent discussed several topics, two of which are brought into issue in this appeal. The first topic objected to by plaintiffs is the Board's Discussion of an architect hired to perform services for the school. The Board's Discussion focused on problems concerning work previously performed for the school by an incorporated architecture business located in Granite City, Illinois. The Board discussed whether, in performing the services under a given contract, the architecture business had completed all services for which it was hired, and whether it had done so within the time provided in the contract.

The relationship established between the school and the architecture business is such that the architecture business does not work exclusively for the school district, although the school entered into several contracts with this architecture business between 1960 and 1980. In performing the services under a contract with the school district, the owner of the architecture business retains complete control over the design of the particular project. During the evidentiary hearing on plaintiffs' motion to enjoin defendants' compliance with the Open Meetings Act, the owner of the architecture business testified that in performing his services, he does not work under the supervision of any other party.

In ruling on whether the Discussion of the architecture business' performance of its contracts was appropriate for executive session, the trial court found that the architecture work was discussed and evaluated by the Board in conjunction with the Discussion of whether the architecture business' service should be retained for future developments. During executive session, the district director of school grounds and maintenance expressed to the Board some dissatisfaction with the work being performed by the architecture business. The trial court ruled that this was not a violation of the Open Meetings Act because it was within the exception enumerated in section 2 of the Act, which provides that information regarding appointment, employment or dismissal of an employee or officer may be considered in closed session. Ill. Rev. Stat. 1987, ch. 102, par. 42.

The second topic plaintiffs contend was improperly discussed by the Board during the closed portion of the meeting held on December 16, 1986, is the policy goals and proposed evaluation of Superintendent Walmsley. During executive session, an evaluation form used in another school district was distributed among members of the Board to be used as a guideline in evaluating the superintendent's goals. The trial court found that the evaluation form was discussed by the Board in expectation of further evaluations of Walmsley's performance as superintendent of schools, and held this was not prohibited by the Act as it fell within the exception of the Act pertaining to Discussion of the employment or dismissal of employees. Ill. Rev. Stat. 1987, ch. 102, par. 42.

The second Board meeting at issue in this appeal was held on January 20, 1987. At this meeting, the agenda enumerated 41 items for consideration. During the open portion of the meeting, approximately seven items were held for executive session. The minutes of the meeting indicate that approximately 16 topics were discussed during executive session. Plaintiffs contend that eight of the topics considered in closed session should not have been so considered; instead, these eight topics, according to plaintiffs, should have been discussed in a meeting open to the public. The eight contested topics are as follows:

(1) Contract with the Granite City School of Beauty Culture;

(2) In-service teacher training program;

(3) Continuing education requirement for administrators;

(4) Policy change for reimbursement of teachers' seeking further education;

(5) Recall rights of dismissed teachers;

(6) Enrollment statistics from 1967 to 1987;

(7) Hiring of speaker; and

(8) District staff ...

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