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12/08/95 REID M. PAXSON v. BOARD EDUCATION SCHOOL

December 8, 1995

REID M. PAXSON, MAYOR OF THE CITY OF NORTHLAKE, AND CITY OF NORTHLAKE, PLAINTIFFS-APPELLANTS,
v.
THE BOARD OF EDUCATION OF SCHOOL DISTRICT NO. 87, COOK COUNTY, ILLINOIS; PEG O'CONNELL, PRESIDENT; MICHELE G. MUDRACK, VICE PRESIDENT; JOYCE A. KRASCHE, SECRETARY; EDWARD HOOD; DONNA RIANI; M. FELICIA SCHUMAN; JEFFREY M. STORCK, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. The Honorable Aaron Jaffe, Judge Presiding.

The Honorable Justice T. O'brien delivered the opinion of the court: Cousins, P.j., and Gordon, J., concur.

The opinion of the court was delivered by: O'brien

The Honorable Justice T. O'BRIEN delivered the opinion of the court:

Plaintiffs, the city of Northlake and its mayor, filed a one count complaint against the Board of Education of School District No. 87 (School Board) and its various board members. Plaintiffs sought injunctive and declaratory relief under the Illinois Open Meetings Act. (5 ILCS 120/1 et seq. (West 1992).) The circuit court dismissed plaintiffs' action with prejudice on the grounds that (i) plaintiffs lacked standing, and (ii) plaintiffs did not file their complaint within the 45 day period of limitations set forth in the Act. We affirm the order of dismissal on the basis of the late filing.

BACKGROUND

Because the circuit court dismissed the complaint pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1992)), the factually competent allegations in the complaint are taken as true.

On November 18, 1993, the mayor of Northlake issued a letter to the School Board regarding, in part, the city of Northlake's tax increment financing. The letter was sent in response to comments made by a board member, Jeffrey Storck, which were published in a local newspaper. Storck apparently suggested that School District No. 87 suffered a loss of revenue as a result of the city of Northlake's financing. In the letter, the mayor indicated that not only had the School District not lost any revenue on account of the city's tax increment financing, but that, in fact, the city of Northlake had enacted certain ordinances which resulted in a net increase in school funding.

In a second letter, dated January 10, 1993, the mayor questioned the propriety of the School Board's approval of a staff seminar held in San Francisco, California. The mayor believed that the city of Northlake was "footing the bill" for the trip because the city provided the School District with monetary incentives for other expenditures. He then requested an explanation as to why, among other things, "staff seminars cannot be kept local, and why the City should not discontinue providing the District with these monetary incentives until the District can assure the City that its dollars will be spent on the children of the District, and not on the people of San Francisco."

The complaint further alleges that the School Board held a regular meeting at its administrative office on January 24, 1994. At the conclusion of the regular meeting, a member of the board moved to recess to a closed executive session in order "to consider information regarding appointment, employment of dismissal of an employee or officer." The motion carried.

During the closed meeting, board members discussed the mayor's letters and decided upon a course of action. The School Board agreed to send the mayor and city aldermen a written reply addressing the issues raised by the mayor.

Shortly thereafter, Peg O'Connell, the School Board president, issued the written reply. In her letter, O'Connell responded to each of the points raised by the mayor, including the tax increment financing, city ordinances and the out-of-state seminar. As to this last issue, O'Connell explained that "the information and expertise gleaned from nationally prominent experts in the field of education at a national conference translate into improved learning programs and procedures in our district which, in turn, directly impact on the quality of education this district can offer its students." A copy of the letter was delivered to the Press Publication Newsletter.

On April 29, 1994, plaintiffs notified the "Illinois [sic] State's Attorney" of the closed meeting, and on that same day filed the instant complaint. Plaintiffs claimed that the aforementioned actions of the School Board during the closed session did not concern "information regarding appointment, employment of dismissal of an employee or officer" and therefore violated the Illinois Open Meetings Act. (5 ILCS 120/1 et seq. (West 1992).) In their prayer for relief, plaintiffs requested the court to (i) enjoin the School Board from future violations of the Act, (ii) declare null and void the School Board's actions in discussing and approving the response letter, (iii) direct the School Board to issue the appropriate recantation to be released to the Press Publication Newspaper, and (iv) assess attorneys fees and costs.

Defendants thereafter moved to dismiss the complaint under section 2-615 of the Code of Civil Procedure, arguing that plaintiffs lacked standing under the Act and that the complaint was not filed within 45 days of the meeting. The court granted the motion to dismiss with prejudice. *fn1

On appeal, plaintiffs submit that they do have standing and that they timely filed their action. They further assert that the circuit court should not have dismissed their complaint under section 2-615; rather, because standing and "statute of limitations" constitute affirmative defenses, defendants should have filed a 2-619 motion to dismiss. (735 ILCS 5/2-619(a)(5) (West 1992).) For these reasons, plaintiffs seek a reversal of the circuit court's order of dismissal.

We agree with plaintiff in part and reverse the circuit court with regard to standing; nevertheless, we affirm the circuit court with regard to the late filing, and therefore affirm the order of dismissal.

ANALYSIS

The Illinois Open Meetings Act mandates that all meetings of public bodies must be open to the public, subject to certain enumerated exceptions not relevant here. *fn2 (5 ILCS 120/3 (West 1992).) In order to ensure compliance, the Act provides in pertinent part:

"Where the provisions of this Act are not complied with, or where there is probable cause to believe that the provisions of this act will not be complied with, any person, including the State's Attorney of the county in which such noncompliance may occur, may bring a civil action in the circuit court for the judicial circuit in which the alleged noncompliance has occurred or is about to occur, or in which the affected public body has its principal office, prior to or within 45 days after the meeting alleged to be in ...


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