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11/06/97 BOARD REGENTS REGENCY UNIVERSITY SYSTEM v.

November 6, 1997

THE BOARD OF REGENTS OF THE REGENCY UNIVERSITY SYSTEM, PLAINTIFF-APPELLANT,
v.
CHARLES G. REYNARD, IN HIS OFFICIAL CAPACITY AS STATE'S ATTORNEY FOR MCLEAN COUNTY, DEFENDANT-APPELLEE, AND THE PEOPLE OF THE STATE OF ILLINOIS, EX REL. CHARLES G. REYNARD, STATE'S ATTORNEY FOR THE COUNTY OF MCLEAN, MCLEAN COUNTY, ILLINOIS, COUNTERPLAINTIFF-APPELLEE AND CROSS-APPELLANT, V. THE BOARD OF REGENTS, A BODY CORPORATE AND POLITIC FOR AND ON BEHALF OF ILLINOIS STATE UNIVERSITY, COUNTERDEFENDANT-APPELLANT AND CROSS-APPELLEE.



Appeal from Circuit Court of McLean County. No. 95MR89. Honorable Ronald C. Dozier, Judge Presiding.

Released for Publication December 4, 1997. As Corrected January 8, 1998.

The Honorable Justice Garman delivered the opinion of the court. McCULLOUGH and Knecht, JJ., concur.

The opinion of the court was delivered by: Garman

The Honorable Justice GARMAN delivered the opinion of the court:

This case arises under the Open Meetings Act (Act) (5 ILCS 120/1 et seq. (West 1994)) and the Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 1994)). The Board of Regents of the Regency University System (Board) filed a complaint for declaratory judgment against defendant Charles G. Reynard in his official capacity as McLean County State's Attorney (Reynard), asking for a determination that the Act did not apply to the Athletic Council (Council) of Illinois State University (ISU). After an investigation, Reynard had previously told the Board that the Act did apply to meetings of the Council, and he had threatened criminal prosecution for violating the Act. The Council had held meetings on March 22 and April 26, 1995, regarding the elimination of the men's wrestling and soccer programs at ISU.

In the course of the investigation, the Board had turned over to Reynard minutes and a transcript of the March 22, 1995, meeting of the Council. After the Peoria Journal Star made a request under the FOIA to Reynard for those documents, the Board filed a motion for preliminary injunction, seeking to prohibit Reynard from releasing the documents until the declaratory judgment action was decided. Reynard filed a countercomplaint against the Board for declaratory judgment and injunctive relief, seeking a determination that the Act applies to the Council, an injunction against further violations of the Act by the Council and an order requiring the Council to make minutes of the closed meetings available to the public. Reynard alleged that the Council improperly went into closed session during meetings held in April 1995, failed to vote to go into closed session, and failed to keep minutes of the meetings in violation of the Act. The countercomplaint asked that all matters discussed during the closed portion of the meetings and voted on during the open portion of the meetings be declared null and void.

Subsequently, Twin-Cities Broadcasting Corporation, WJBC-WBNQ Radio (Twin-Cities), filed a similar request under the FOIA that was denied, and it sought injunctive relief to prevent withholding of documents by Reynard. The trial court denied a motion by Twin-Cities for judgment on the pleadings and granted the Board's request for injunction. Twin-Cities appealed the court's decision in its case, and this court handed down its decision affirming the trial court's judgment in Twin-Cities Broadcasting Corp. v. Reynard, 277 Ill. App. 3d 777, 661 N.E.2d 401, 214 Ill. Dec. 547 (1996).

Reynard appealed the trial court's decision granting the Board's request for injunctive relief. In Board of Regents of the Regency University System v. Reynard, Slip op., No. 4-96-0159 (August 7, 1996) (unpublished order under Supreme Court Rule 23), this court dismissed the appeal as moot because of the Board's action in voluntarily turning over to Twin Cities the minutes of the March 22, 1995, meeting of the Council.

The Board filed an amended complaint in which it additionally asked for a declaratory judgment that the FOIA does not apply to records of the Council.

A bench trial on the merits was held on June 5 and 12, 1996. Ira Cohen, ISU professor of history and current parliamentarian of the Academic Senate (Senate), testified as to the governing structure of ISU and the role of the Council. The Illinois General Assembly created the Board. The Senate, which is the primary body determining educational policy at ISU, reports to the president who, in turn, reports to the Board. Internal committees of the Senate are composed only of Senate members. External committees are composed of people who are not on the Senate. Under Senate bylaws, the role of Senate committees is to make reports and recommendations to the Senate. The bylaws of the Council provide that it is an external, standing committee of the Senate. It is to report to the student affairs committee. In reality, it serves as an advisory body to the athletic director, with primary advisory responsibility to the president. It gives advice on the development of budgets and policies governing the intercollegiate athletic program. The Council consists of voting and nonvoting members. The voting faculty members are elected by the Senate for staggered three-year terms, the four voting student members are elected by the Senate for one-year terms, and the two voting alumni members are selected by the board of directors of the ISU alumni association. The nonvoting Council members are the athletic director, associate athletic director, two coaches, and the president's administrative designee. Members of the Council cannot be removed except for absences.

Cohen testified that the Board and the president normally follow the recommendations of the Senate, but they are not required to do so. The Council gives the president advice concerning National Collegiate Athletic Association (NCAA) regulations. There are over 300 standing committees at ISU; in Cohen's opinion, compliance with the Act would be a "nightmare" for all these committees.

Richard Greenspan, ISU athletic director, testified that he reports to the president. The recommendations of the Council are not binding on him or the president. The Council is an advisory body providing advice and feedback to the president and athletic director on athletic issues. Greenspan uses the Council as a sounding board. He is free to reject its advice and there have been occasions when he has done so. The Council deals only with internal ISU matters, it has no budget, and none of its members are paid. In 1993, a subcommittee of the Council developed a "Gender Equity Plan" (Equity Plan) in connection with ISU's need to comply with NCAA requirements on gender equity. The Council considered the Equity Plan in 1993 and, in 1995, also considered the "Gender Equity Management Plan" (Management Plan). The Management Plan first went to the president and, subsequently, the Council was asked for its recommendation. After the Council recommended its adoption, the Management Plan was adopted. As a result, men's soccer and wrestling were eliminated and women's soccer was added.

Greenspan stated that the athletic department provides visibility to ISU and provides opportunities for philanthropic ventures and fund-raising. People from both inside and outside ISU donate to the athletic program. Proper management of its sports program can bring prestige to a school. Athletes often choose a school based on its athletic program.

James Johnson, ISU psychology professor and former chair of the Council, testified that the Council exists to provide faculty input to the decision-making bodies at ISU. It also reviews the athletic department's budget. The Council did not vote to eliminate any sports programs; rather, it voted to approve the president's recommendation to eliminate those programs. He believes the decision to eliminate the men's programs was made prior to seeking the Council's recommendation. The Equity ...


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