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Sandholm v. Dixon Public School Dist. No. 170

March 10, 2010

STEVE SANDHOLM, PLAINTIFF,
v.
THE DIXON PUBLIC SCHOOL DISTRICT NO. 170, CAROLYN BRECHON, JAMES HEY, THOMAS BALSER AND WOODY LENOX, DEFENDANTS.



The opinion of the court was delivered by: P. Michael Mahoney Magistrate Judge

MEMORANDUM OPINION AND ORDER

I. Introduction

Plaintiff was previously employed at Dixon High School as the boys Head Basketball Coach and the Athletic and Activities Director ("Athletic Director"). (Compl. ¶ 1.) Plaintiff alleges that on September 5, 2007, Dixon Public School District No. 170 ("District 170") entered into a written agreement to employ Plaintiff as Head Basketball Coach and Athletic and Activities Director until the conclusion of the 2010--2011 school year. (Id. ¶ 5.) However, on April 23, 2008, the Dixon School District Board of Education (the "board") voted to remove Plaintiff as Head Basketball Coach. (Id. ¶ 11.) Then, on September 17, 2008, the board members took action to remove Plaintiff from his position as Athletic Director. (Id. ¶ 13.)

Plaintiff's complaint alleges that District 170 violated the Age Discrimination in Employment Act, 29 U.S.C. § 623 et seq, when the board voted to remove Plaintiff from the position of head coach and subsequently filled that position with a younger man. (Id. ¶ 14.)

Plaintiff's complaint also alleges that District 170 and certain individual board members violated his procedural due process rights under the Fourteenth Amendment and 42 U.S.C. § 1983 when the board removed him from his position as Athletic Director.

Before the court is Plaintiff's motion to compel the audiotapes of the September 5, 2007 and the September 17, 2008 executive school board meetings. Defendants have produced for an in camera inspection transcripts of executive meetings of the school board for the following dates: March 19, 2008, April 14, 2008, April 23, 2008, July 9, 2008, and September 17, 2008.*fn1

Defendants claim that each transcript in its entirety is subject to the Illinois Open Meetings Act, and that portions of the transcripts are subject to the deliberative process privilege. Defendants also claim that portions of the transcripts are subject to the attorney-client privilege. Defendants have not produced, and do not discuss in their response, the audiotapes for the September 5, 2007 executive meeting.

II. Illinois Open Meetings Act Privilege

The Illinois Open Meetings Act provides that, absent the governmental entity's consent, "the verbatim record of a meeting closed to the public shall not be open for public inspection or subject to discovery in any administrative or judicial proceeding other than one brought to enforce this Act." 5 Ill. Comp. Stat. 120/2.06(e). The privilege memorialized in the Illinois Open Meetings Act does not exist in the federal common law. Kodish v. Oakbrook Terrace Fire Protection Dist. et al., 235 F.R.D. 447, 451 (N.D. Ill. 2006). Where the principle claim arises under federal law, the proceedings in this court are governed by the principles of the federal common law. Fed. R. Evid. 501(a); Memorial Hosp. for McHenry County v. Hon. Milton I. Shadur, 664 F.2d 1058, 1061 (7th Cir. 1981). However, "[a] strong policy of comity between state and federal sovereignties impels federal courts to recognize state privileges where this can be done at no substantial cost to federal substantive and procedural policy." Sronkoski v. Schaumburg Sch. Dist., No. 54, 08-C721, 2009 WL 1940779, 2009 U.S. Dist. LEXIS 57803, at *11 (N.D. Ill. July 1, 2009)(quoting Memorial Hosp., 664 F.2d at 1061). The Seventh Circuit has indicated that courts should "weigh the need for truth against the importance of the relationship or policy sought to be furthered by the privilege, and the likelihood that recognition of the privilege will in fact protect that relationship in the factual setting of the case." Memorial Hosp., 664 F.2d at 1062--61.

Defendants assert that the Illinois Open Meetings Act privilege applies to the entire transcript for each of the executive board meetings held on March 19, April 14, April 23, July 9, and September 17, 2008. The claims in this case arise under federal law and, thus, the guiding principles are those of federal common law. However, the court may apply the Illinois Open Meetings Act privilege in this case if the importance of the policy furthered by the privilege outweighs the need for truth.

It appears to the court that the policy underlying the Illinois Open Meetings Act privilege is similar to that of the federal deliberative process privilege: to promote frank discussion of legal and policy matters. See Sronkoski, 2009 U.S. Dist. LEXIS 57803, at *13--14; see also infra Section III. In Kodish, the court declined to recognize the Illinois Open Meetings Act privilege. Kodish, 235 F.R.D. at 452. The plaintiff in Kodish was a firefighter that brought a claim under 42 U.S.C. § 1983 alleging that the Fire District violated his civil rights when it terminated him. Id. Plaintiff sought disclosure of the audiotape recorded during the closed session meeting at which the Board of Trustees decided to terminate his employment. Id. The court found that disclosure of the tape would "likely aid in uncovering the facts relied upon by the Board of Trustees to terminate Plaintiff," and that the "interests served by the open meeting privilege [were] overcome by the need for probative evidence." Id.; see Sronkoski, 2009 U.S. Dist. LEXIS 57803, at *13--14 (finding that the need for information in a case brought under the Americans with Disabilities Act outweighed a defendant school board's interests in nondisclosure under the Illinois Open Meetings Act). The court also found that the attorney-client privilege adequately protected the interests served by the Illinois Open Meetings Act privilege. Id.

Defendants in this case argue that the court should follow Tumas. The court in Tumas held that the plaintiff, a former employee of the defendant school board, could not get transcripts of closed session school board meetings because such discovery was protected by the "clear language" of the Illinois Open Meetings Act. Tumas, 2007 U.S. Dist. LEXIS 56242, at *27--28, 32. The court in Tumas did not elaborate on the policy justifications underlying the Illinois Open Meetings Act privilege. It relied only on the "clear language" of the Act. It did not balance the plaintiff's interest in the information against the defendant's interest in nondisclosure. See id. at *27--32. Because the court must balance the interests in this case, the reasoning in Tumas offers little guidance.

After review of the transcripts, the court finds that the material contained therein is of little relevance to the claims set forth in Plaintiff's complaint. Although the discussions at times pertained to Plaintiff and his employment, Plaintiff's age is not discussed and the transcripts do not establish whether Plaintiff's due process rights were violated. They offer little, if anything, to further Plaintiff's claims. It appears that the importance of the policy underlying the Illinois Open Meetings Act privilege outweighs Plaintiff's need for the information contained in the transcripts for March 19, April 14, April 23, July 9, and September 17, 2008. Under these circumstances, the ...


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