By PETE SPITLER
Weekly-Press, Pinckneyville

DU QUOIN – After months of analysis by his office, Illinois Attorney General Kwame Raoul has issued a binding opinion that the Du Quoin District 300 Board of Education violated the Open Meetings Act during one of its three executive sessions that took place during the school board's April 7 special meeting.

Perry County Weekly-Press Publisher Jeff Egbert submitted a Request for Review to the AG's Public Access Counselor on April 11 seeking a review of the school board's closed sessions during that meeting, which was the one during which a group of Durham School Services bus drivers turned in their gas cards and other employee materials in protest of the board's choice of Durham in continuing to provide student transportation in the district.

The drivers who are not District 300 employees had previously aired their grievances with their employer in Durham to the board during its regular March meeting, with the April 7 meeting being called, in part, to allow the board to take action on the bus contract.

In the opinion released on July 12, Raoul stated the board failed to cite an applicable exception before closing the meeting to the public and improperly held a closed session for discussion of bids for a student transportation contract.

On Monday, July 18, the Du Quoin school board issued the following statement in response to Raoul's opinion: "On July 12, 2022, the Illinois Attorney General's office released Binding Opinion 22010," the statement said. "In that opinion, the Illinois Attorney General's Office concluded that the second of three closed sessions conducted during the April 7, 2022, special meeting of the DCSD 300 Board of Education did not conform to the requirements of section 2A of the Illinois Open Meetings Act.

"During the executive session at issue, the Board discussed three competing bids for a student transportation contract. The Board entered the second closed session based on concerns that legal consequences could result from the student transportation bidding process. The Attorney General's Office has determined that those concerns did not meet the relevant exceptions to the Open Meetings Act.

"The Board respects the decision of the Attorney General's Office and will make the verbatim recording and minutes of the second closed session available to the public," the board continued

"The Board remains committed to providing quality public education while operating in a manner that is open and transparent."

During the April 7 meeting, the board heard about a half-hour of open discussion on the bus contract topic before board member Kevin West made a motion to go with Robinson Transportation (whose bid was $345,543 higher than Durham's), that was seconded by board member Crystal Harsy.

The motion failed on a 3-2 decision, with board member Steven Still abstaining without explanation and Board President Brian Rodely, Vice President Trent Waller and Secretary Amy Rose all voting "no."

Waller then made a motion to choose Durham, with Rodely seconding. This time, the vote deadlocked at 3-3 with Still, West and Harsy all voting "no."

Still then motioned to go back into executive session, which the board agreed with. About an hour and a half later, the board returned to open session and voted 4-2 (with Still voting with the board's leadership) in favor of Durham before returning to executive session for the third time.

The school board has acknowledged it did not publicly state the exception for going into closed session for the second time after Still's motion, but argued that its discussion fell within the scope of "anticipated litigation."

In his opinion, Raoul pointed to the 2021 Illinois Appellate Court case City of Bloomington v. Raoul, in which the court found members of the Bloomington City Council had entered closed session without reasonable grounds to believe that litigation against the City of Normal concerning the cities' intergovernmental agreement was "probable" or "imminent" and was instead speculative in nature.

"Here, the (Du Quoin School) Board contended that its closed session discussion concerning the student transportation bid was permitted by Section 2(c)(ll) of OMA because litigation was anticipated," Raoul wrote in his opinion. 'The Board did not state any litigation was pending."

Raoul added that in the school board's redacted answer, the board members "noted their concerns" and board attorney (Matthew Benson), who participated in the executive session, "validated their concerns."

"This office's review of the verbatim recording of the Board's 7:24 p.m. closed session meeting revealed the Board's discussion of its concerns did not focus on probable or imminent litigation," Raoul wrote. "Similar to the city council in City of Bloomington, the Board's discussion of litigation was Speculative.

"Further, none of the materials the Board submitted to this office indicate that at the time of the April 7, 2022, special meeting, the Board had a reasonable basis to believe that litigation was more likely than not to occur."

Raoul continued by stating the board's discussion was not limited to the "strategies, posture, theories and consequences" of the litigation, but "primarily concerned what course of action to take in awarding a bid for the student transportation contract."

In its answer to the PAC, the school board also indicated its closed session exemption fell within "criminal investigations."

This section permits public bodies to hold closed meetings to discuss "informant sources, the hiring or assignment of undercover personnel or equipment, or ongoing, prior or future criminal investigations when discussed by a public body with criminal investigatory responsibilities."

Raoul's opinion placed bolded emphasis on the last 10 words in that sentence.

"The Board did not identify for this office any source of authority it has to conduct criminal investigations," Raoul wrote. "Further, there are no provisions in Article 10 of the Illinois School Code ...which describes the powers and duties of school boards of education that authorizes the Board to conduct criminal investigations."

At the conclusion of his opinion, Raoul directed the school board to "remedy this violation by disclosing to Mr. Egbert and making publicly available the verbatim recording of the 7:24 p.m. closed session that occurred during the April 7, 2022, special meeting and the corresponding portion of the April 7, 2022, closed session minutes."

"As directed by section 3.5(e) of OMA, the Board shall either take necessary action as soon as practical to comply with the directives of this opinion or shall initiate administrative action under section 7.5 of OMA," Raoul wrote.

The school board did have the option of filing a complaint for judicial review of the matter in the Circuit Court of Cook County or Sangamon County within 35 days of the date of the opinion.

As for the school board's other two closed sessions during that April 7 meeting, Raoul determined that they were properly conducted using the personnel exemption.

"The 6:02 p.m. session discussion focused on the retirement of one specific employee, and the hiring of two other specific employees," Raoul wrote. "The 8:42 p.m. closed session focused on two specific administrators' performances during the student transportation bid process.

"Because those discussions directly concerned the employment and performance of specific employees, section 2(c)(1) of OMA authorized the Board to hold the discussions in closed session."

The school board is scheduled to convene this Thursday, July 21, at 6 p.m. for its regular July meeting.