Month: September 2011

Mandatory Open Meetings Act Training for Members of Local Government

Recent amendment to Open Meetings Act requires all elected and appointed members of public bodies to receive training

By Robert B. McCoy

robert.mccoy@mhtlaw.com

A recent amendment to the Open Meetings Act, which becomes effective January 1, 2012, requires all elected or appointed members of a public body to receive mandatory training regarding the various requirements and responsibilities established by the Act.  Although compliance with this mandatory training requirement should not create a heavy burden on local governments, we recommend that each local governmental entity take time to identify the persons required to undergo the training and take steps to ensure that those persons complete the training by their statutory deadline.

The Act clearly applies to members of city councils, village boards, park district boards, school boards, etc.  However, persons not serving on a local governmental entity’s governing board might also be required to undergo training, depending on how the entity conducts its business.  The Open Meetings Act applies to all “public bodies,” which is defined broadly to include subsidiary bodies, “including but not limited to committees and subcommittees which are supported in whole or in part by tax revenue, or which expend tax revenue.”  Common examples of such subsidiary bodies are zoning boards and planning commissions.  If a local governmental entity sets up any committee or subcommittee that is supported by any tax money, or has authority to spend tax revenue, that committee or subcommittee’s members, whether they are employees or community volunteers, its members are arguably required to undergo training.

Who are the members of a public body, or the members of a public body’s committee or subcommittee?  The Act does not say, but the most natural reading of the Act is that anyone with voting rights and anyone who is counted to form a quorum is a member.  Non-voting attendees are not required to undergo Open Meetings Act training.  For example, a local governmental entity might have a clerk, treasurer and attorney, all of whom regularly attend meetings, but do not vote and do not count towards establishing a quorum.  Unless and until the Act is clarified by the Illinois Attorney General or the courts, it appears that the clerk, treasurer and attorney in this example are not required to undergo training.  Of course, they may find the training beneficial, and online training is free and available to any interested person.  In contrast, an unpaid volunteer on a park district committee supported by tax dollars, even though she may not consider herself a public official, should complete the training.

For presently-serving members of a public body, the mandatory training is to be completed by January 1, 2013.  Persons elected or appointed to a public body after January 1, 2012 are to complete the training within 90 days of taking their oath of office.  (Members of a public body who do not take an oath of office are to complete the training within 90 days of assuming their public duties.)

The mandatory training is available online, at the website maintained by the Illinois Attorney General’s Public Access Counselor, located at: http://foia.ilattorneygeneral.net/electronic_foia_training.aspx.  This website is already up and running because the Open Meetings Act has, since January 1, 2010, required all public bodies to designate at least one official or employee to undergo online training.  There is no reason to believe that the format of this online training will change now that it has been expanded to cover all members, not just a single designee of a public body.  The online course currently consists of 58 pages of information regarding compliance with the Open Meeting Act, interspersed with multiple choice questions.  The training can be completed in about one hour.

Elected school board members are given the option to attend a school board association sponsored training session, instead of training online.  There is no equivalent option for other elected officials; municipal officials cannot complete the training by attending any municipal association session.

Once a member of a public body completes the training, he or she is required to file a certificate of training with his or her public body.  Likewise, every member of committee or subcommittee established by the public body should file a certificate that he or she completed the online training.

Currently, the mandatory training for all members of a public body is on the honor system.  If the training is not completed, the member faces no penalties.  Other violations of the Open Meeting Act still carry a stiff penalty, including criminal sanctions.  Nevertheless, the Act has received much attention, and it is certainly possible that the Act will be amended yet again to include penalties for officials who fail to undergo training.

FOIA Changes in Regards to “Recurrent Requesters”

Change in legislation allows governmental bodies more time to respond

By Richard M. Joseph

richard.joseph@mhtlaw.com

On August 26, 2011, Governor Quinn signed into law an amendment to the Illinois Freedom of Information Act (the “Act”) designed to provide additional time for public bodies to respond to requests of “recurrent requesters”.

The new law is being criticized, both by governmental bodies, as not providing enough protection from nuisance requesters, and by watchdog groups as having a chilling effect upon an individual’s right to seek information from governmental bodies.

The “recurrent requester” provision of the law allows governmental bodies to delay responses for up to 21 days in the event the person requesting the response (i) has filed 50 requests for records within the year, (ii) filed 15 requests for records within a 30-day period, or (iii) filed 7 requests for records within a 7-day period.  Without such modification, the governmental body was required to respond within 5 days or, under certain limited circumstances, request a 5-day extension.

The modification defines a “recurrent requester” to exclude news media and non-profit, scientific, or academic organizations where the principal purpose of the request is to access and disseminate information concerning news and current events, for articles of opinion, or features of interest to the public, or for academic, scientific, or public research or education.

Within five business days after receiving a request from a “recurrent requester”, the public body is required to notify the requester that the public body is treating the request as a request from a recurrent requester under subsection (g) of Section 2 of the Illinois Freedom of Information Act, set forth the reasons why the public body is treating the request as a request from a recurrent requester, and that the public body will send an initial response within 21 days after receipt in accordance with the Act.

In addition to sending the five-day notice discussed above, when a Freedom of Information Act Request is received from a “recurrent requester”, the public body must respond within 21 days.  Such response must (i) provide to the requester an estimate of the time required by the public body to provide the records requested and an estimate of the fees to be charged, (ii) deny the request pursuant to one or more of the exemptions set forth in the Act, (iii) notify the requester that the request is unduly burdensome and extend an opportunity to the requester to attempt to reduce the request to manageable proportions, or (iv) provide the records requested.  The public body may require the requester to pay in full any fees to be charged before copying the requested documents.

The law then provides that, unless the records are exempt from disclosure, the public body shall comply with the request “within a reasonable period considering the size and complexity of the request”.

Anyone who is deemed by a public body to be a “recurrent requester” can appeal their status to the Illinois Attorney General’s Office.

In addition to the recurrent requester modification, the law has also been changed to now allow a public body to charge a search fee up to $10.00 for each hour spent by personnel in searching for and retrieving records requested for a commercial purpose, although no fee shall be charged for the first eight hours spent by personnel in searching for or retrieving a requested record.  Thus, this fee modification will not be of significant import to most governmental bodies in responding to typical requests under the Freedom of Information Act.

Finally, the law was changed to provide that a person whose request to inspect or copy a public record is made for a commercial purpose may not file a request for a review with the Public Access Counselor.  That having been stated, when a person whose request to inspect or copy a public record is treated by the public body as a request for a commercial purpose (as opposed to being identified by the requester for a commercial purpose) the requester may file a request for review with the Public Access Counselor of the Attorney General’s Office for the limited purpose of reviewing whether the public body properly determined that the request was made for a commercial purpose.

Drafting a Social Networking Policy

Issues for districts considering whether and how to regulate employees’ electronic communications

By Joshua D. Herman

joshua.herman@mhtlaw.com

Social networking platforms and personal technology devices provide unique opportunities to educate and interact in the modern age. Unchecked, the same technology can also lend itself to unprofessional behavior by employees and the publication or exposure of records and information to the public that could subject the district or its employees to liability.

Most districts considering a social networking policy are concerned with preventing misuse of district resources and preventing inappropriate communications by employees.  In drafting a social networking policy, a district may want to consider starting with the new Illinois Association of School Boards’ PRESS policy 5:125. This policy attempts to establish the boundaries of professional behavior by district employees without going astray of the First Amendment. Depending on your district’s goals, you may find that the PRESS policy goes too far, or not far enough.  Regardless of what position your district takes, the following matters should be considered when drafting a social networking policy.

Ethical Conduct

A district should consider how to help ensure district employees do not violate their legal and ethical obligations when using social networks or personal technology. One way is to require district-related communications be open and transparent, as well as accessible to relevant district employees, including supervisors and administrators.  Additionally, noting within the policy that the district may search for and review any social networking or other electronic posts to ensure compliance with the policy may help to prevent inappropriate conduct by employees.

Types of Communications Allowed

A district might also consider requiring employees to use only district-supported technology for district- related communications (district email, homework forums, etc.). This restriction should help to avoid misuse of district resources while giving the district greater opportunity for investigation and review if any issues arise. Further, restricting employee communication with students to only district-supported technology should greatly reduce the potential for unprofessional or peer-like interactions to occur. However, some districts do not have such technology and others may allow or even encourage employees to engage students using other common methods of communication. Districts should consider whether and when an employee may conduct district business outside of district-supported technology and explicitly address these exceptions.

Private Contact Information

To prevent private, personal, and peer-like communications between employees and students, a district may also want to consider prohibiting employees from providing their private contact information, such as email and personal phone numbers, to students. Such a provision would likely require specific exceptions because, for example, traveling sports and competitive teams often benefit from the quick communication allowed by mobile phones. If a district authorizes such communications with private devices, a policy may require prior approval by administration before private contact information is shared with a student. A policy may also require that a copy of the information given to the student is given to both the employee’s supervisor and the student’s parent, with an explanation of why the information was shared, as well as when and in what circumstances that form of contact will be used.

Responsibility For Publicizing Information

While a district cannot prevent an employee from using social networks, it can notify employees that they are responsible for what they post. Consequently, a district should consider explicitly stating within the policy that employees who use social networks are responsible for the content and consequences of their communications. A social networking policy may make clear that it is the employee’s obligation to read and understand the terms of use for each forum used. A social networking policy should also make clear that employees shall not post information that would violate student records laws or privacy concerns, or divulge other confidential district information.

Professional v. Peer

Usually, the primary purpose of a social networking policy is to avoid an appearance of impropriety by district employees.  To this end, many districts consider restricting social networking and personal technology use during the school day.

A district may also consider prohibiting a direct social networking relationship with current students (such as “friending”), with some exceptions. A total ban would likely violate the First Amendment, as the state of Missouri recently discovered when it recently passed a law stating: “No teacher shall establish, maintain, or use a non-work-related internet site which allows exclusive access with a current or former student.” In August 2011, a circuit court judge issued an injunction, preventing the new law from going into effect because its restriction was so sweeping that it would have a chilling effect on speech. In addition to potentially violating the law, a total ban might also have the unintended effect of preventing a district employee from “friending” their own child or other relative, church youth group member, etc. Consequently, any limitation on social networking interaction must be carefully crafted.

Disclaimer

Although the district has an interest in providing a framework for employee behavior in the public arena, the First Amendment prevents the district from completely banning an employee’s use of social networking sites. However, districts need not become associated with every public word posted by their employees. Thus, many districts require social networking employees to provide a disclaimer.  This provision would require district employees who, through their use of social media, refer to the district or may be identified as a district employee, to provide a disclaimer that any opinions are those of the individual and are neither endorsed by the district nor representative of the district’s views or policies.

Bargaining

Any policy a district does choose to implement regarding employee use of social networking and personal technology will likely touch upon, if not change, the terms and conditions of employment; therefore, such a policy may have to be bargained.  A district may avoid issues at bargaining by seeking input from employees who regularly use social networking prior to the policy drafting stage.

Conclusion

A district implementing a social networking policy can avoid legal missteps by remembering throughout the process that the policy is not meant to control all on and off campus communications, but to ensure professional relationships between district employees, students, and their parents.