Category: Robert McCoy

Illinois FOIA prohibits disclosure of disciplinary records older than 4 years

Disciplinary Records Older Than 4 Years Prohibited from Disclosure in Response to FOIA Request

By:  Robert B. McCoy

robert.mccoy@mhtlaw.com

Public employers have sometimes attempted to prevent the disclosure of an employee’s disciplinary records in response to Freedom of Information Act (FOIA) request under the theory that a request for such records is an unwarranted invasion of the employee’s privacy.  However, it is now settled law in Illinois that disciplinary records of a public employee, where discipline was actually imposed and which bear on the employee’s ability or fitness to do his or her work, are public records that must be released in response to a FOIA request.   But, must a public employer disclose every past reprimand or suspension of an employee, no matter how long ago the discipline was imposed?

The answer is “no.”  The Illinois Appellate Court, in the case Johnson v. Joliet Police Department, decided on June 19, 2018, ruled that, when a public employer received a FOIA request for an employee’s disciplinary records, the Personnel Record Review Act (Review Act) mandates that the employer delete those records which are more than four years old.

In the Johnson case, the Joliet Police Department denied a plaintiff’s FOIA request for records relating to the discipline of one of its employees.    This employee had been disciplined twice, but that discipline had been imposed more than four years prior to the FOIA request.

In ruling that the Joliet Police Department justifiably denied the FOIA request, the Appellate Court noted that Section 8 of the Review Act provides that “An employer shall review a personnel record before releasing information to a third party and, except when the release is ordered to a party in a legal action or arbitration, delete disciplinary reports, letters of reprimand, or other records of disciplinary action which are more than 4 years old.” (820 ILCS 40/8.)

Section 8 of the Review Act appears straightforward, but the plaintiff making the FOIA request in the Johnson case argued that Section 11 of the Review Act, which states that the Review Act is not to be construed as to diminish a right to access records already otherwise provided at law, meant that the Joliet Police Department could not limit his FOIA rights. (820 ILCS 40/11.) The Appellate Court disagreed, finding that the plaintiff’s interpretation of the Review Act rendered meaningless Section 7.5(q) of FOIA, which exempts from FOIA information prohibited from being disclosed by the Review Act.  (5 ILCS 140/7.5(q).)

Practice Tips

 If your public body receives a FOIA request for employee disciplinary records, the first step is to determine what records are responsive to the request, and whether the records are actually disciplinary records.  Not all records regarding an employee’s poor performance are disciplinary records.  For example, in the Johnson case, the Appellate Court noted that citizen complaint registers were not disciplinary records.  Records of an investigation or adjudication, to determine whether discipline should be imposed against a specific employee, are not disciplinary records.  Neither are performance evaluations.  But, letters of reprimand or notices of suspension (with or without pay) are disciplinary records.  These records must usually be disclosed, but pursuant to Section 8 of the Review Act, disciplinary records more than 4 years old must be deleted from the response to a FOIA request.  Whenever records are withheld in response to a FOIA request, the requester must be informed of the reason for the denial, while also being informed of his or her right to appeal to the Illinois Attorney General’s Public Access Counselor or file a lawsuit seeking review of the denial.

If any disciplinary records are being released to a third party, Section 7 of the Review Act requires that the employee receive prior notice before the records are released. (820 ILCS 40/7.)  When disciplinary records are being released to a third party pursuant to a FOIA request, notice to the employee can be by email; otherwise, the notice must be by first-class mail. Employees have the right to supplement their personnel file with their side of the story, and any written explanations should be released along with the disciplinary records being divulged, but employees do not have the right to veto or delay the release of their disciplinary records.

 

Deadlines for Education Reform

Important Dates under Senate Bill 7 and the Performance Evaluation Reform Act of 2010 (PERA)

By Robert B. McCoy

The Performance Evaluation Reform Act of 2010 (PERA) and the Education Reform Act (commonly known as Senate Bill 7) made numerous changes to how teachers are hired, evaluated, laid off and terminated. The legislation also changes the way principals are to be evaluated.  Further, the legislation requires data-based measurement of student growth.  Some of those changes were effective immediately, but for many school districts, some of the changes will not be implemented until September 1, 2016.  The following is a brief overview of what is coming and important dates to remember.

Effective Immediately

Dismissal of Teachers for Cause.  New rules govern the dismissal of tenured teachers for cause.  The most significant change is that a board of education can now review a hearing officer’s recommendation regarding teacher dismissal and make the final decision.  A board can reject the hearing officer’s factual findings or modify or supplement the findings of fact if, in its opinion, the findings of fact are against the manifest weight of the evidence.  The board’s final decision is subject to review by the courts.

Filling New or Vacant Teacher Positions. The selection of a candidate for a new or vacant teaching position (not a recalled position) must be based upon the consideration of statutory factors that include certifications, qualifications, merit and ability (including available performance evaluations), and relevant experience.  Length of continuing service with the school district must not be considered as a hiring factor, unless all other factors are equal.

Evaluations of Certified Staff.  Superintendent, principal and teacher evaluations are prohibited from disclosure, except as expressly permitted by PERA.  (The Personnel Record Review Act already prohibits the disclosure of performance evaluations under the Freedom of Information Act, but PERA reverses Illinois Educational Labor Relations Board decisions allowing union access to evaluations to support grievance claims.)

Changes to RIF Sequence.  Except for school districts with unexpired collective bargaining agreements that address RIF sequences and were entered into on or before January 1, 2011, new rules apply to the honorable discharge and recall of teachers.  See the companion article in this issue of the School Law Advisor.

Impasse/Strike Procedures.  New rules govern a union’s ability to move from impasse to strike in the bargaining process.  An impasse cannot be declared until 15 days have passed in the mediation process.  When an impasse is declared, both sides must submit a final offer within seven days.  Seven days after receiving the final offers, the mediator shall make these final offers public.  A strike cannot occur until 14 days after the offers have been made public.

Date Specific Deadlines

March 1, 2011:  Deadline for Principal Evaluation.  Principals required to be evaluated in a given year are to be evaluated no later than March 1 of that year.  Previously, principal evaluations were to be accomplished by February 1.

December 1, 2011:  Formation of Joint Committee.  A joint committee with an equal number of school district and union representatives must be established and hold its first meeting by this deadline to address reduction in force (RIF) issues.  See the companion article in this issue of the School Law Advisor regarding RIFs and joint committees.

June 12, 2012:  Board Member Training. By this date, or during the first year of a new board member’s first term, every voting board member must have completed a minimum of 4 hours of training, covering topics in education and labor law, financial oversight and accountability, and fiduciary responsibilities of a school board member.  Names of the board members who have successfully completed the training are to be posted on the school district’s internet site.

July 1, 2012: Teacher Dismissal/ Hearing Officer Selection. After this date, a tenured teacher facing dismissal for cause must be notified that he or she has a choice to either mutually select the hearing officer, and split the hearing officer’s cost with the school district, or have the school district select the hearing officer, in which case the school district pays the hearing officer’s full cost.

September 1, 2012:  Evaluator Training. Any evaluator undertaking an evaluation after this date must have successfully completed a pre-qualification program approved by ISBE. The program must involve rigorous training and an independent observer’s determina-tion that the evaluator’s ratings properly align to the requirements established by ISBE.

September 1, 2012:  Four-Tiered Performance Rating System for Teachers. New evaluation plans for teachers, with the new four-tiered rating system required by PERA, must be in place by this date.  There must also be new evaluation plans for principals, using the new rating system.  Principal evaluation plans must provide for the use of data and indicators on student growth as a significant factor in rating performance.

June 30, 2013: Teacher RIFs/ Collective Bargaining Agreements. If they have not already expired, any collective bargaining agreements that were entered into on or before January 1, 2011, and whose provisions regarding reduction in force conflict with PERA, no longer control RIFs. The RIF and teacher recall sequence is now controlled by legislation.

September 1, 2015: PERA Implementation Date/Lower 20%.  The “implementation date” for all remaining PERA requirements for those schools whose performance falls in the lower 20th percentile. After the implementation date, new rules apply regarding the acquisition of teacher tenure; teacher performance is a factor, where length of time required to acquire tenure is tied to evaluations. Also, student growth must be a significant factor in rating teacher performance.  Alternate teacher dismissal process based on PERA evaluations becomes available.

September 1, 2016:  PERA Implementation Date/All Districts.  The “implementation date” for all remaining PERA requirements for those schools whose performance falls above the 20th percentile. These higher-performing school districts become subject to the same rules that became applicable to lower-performing districts the prior year.

The Role of the Joint Committee under Senate Bill 7

Every District’s Joint Committee must hold its first meeting to discuss RIF issues by December 1, 2011

By Robert B. McCoy

robert.mccoy@mhtlaw.com

The Education Reform Act (commonly known as Senate Bill 7) created new rules for the reduction in force (RIF) and recall of honorably discharged teachers.  In a nutshell, the old seniority system is abolished, and the new rules require teachers to be placed in one of four groups, with group one to be the first to be dismissed, and group four the last to be dismissed (and the first to be recalled).  Group one consists of non-tenured teachers who have not yet been evaluated; a teacher’s placement within group two, three or four depends on his or her performance evaluations, with the highest evaluated teachers being placed in group four.

These new rules for dismissals and recalls are effective immediately and apply where the notice of dismissal is given during the current (2011-2012) or future school years. However, many, if not most, school districts will continue to operate under RIF procedures mandated by their collective bargaining agreements. Collective bargaining agreements that were entered into by January 1, 2011, and which have not yet expired, will continue to govern RIF issues until June 30, 2013.  After June 30, 2013, the Education Reform Act takes precedence over conflicting contract provisions.  The Act does not state whether unwritten contract provisions, such as past practices or informal agreements regarding teacher seniority, have any role in RIF decisions through June 30, 2013; arguably, they do not.

Regardless of whether a collective bargaining agreement currently addresses RIF issues, the Act mandates that a joint committee be formed and hold its first meeting no later than December 1, 2011. The joint committee (hereinafter, “JC”) is to consist of an equal number of school board and teacher representatives, selected by the school board and the teachers (or the teachers’ union), with each member to have one vote.   The Act does not require any specific number of JC members (only equal representation at the table), nor does it state whether the members are to receive any compensation or reduction in duties for their service.  The school district may be required to bargain these issues, but if impasse occurs, the school district should implement its plan for establishing and running the joint committee.

The Act lists five duties of the joint committee

  1. The JC must consider whether to modify the Act’s default rules regarding the placement of certain teachers in either group two or three.
  2. The JC must consider whether to adopt alternative rules regarding the placement of teachers in group four (the highest performing group) based on factors outside of evaluations that relate to the school district’s or program’s educational objectives.
  3. The JC may consider whether performance evaluations prepared by another school district are to be used in the sorting of teachers into the four ranked groups.
  4. If a school district’s current evaluation plan is inconsistent with the Performance Evaluation Reform Act’s rating system, the school district must consult with the JC on how to assign compatible ratings for purposes of determining the order of teacher dismissal.
  5. The JC has limited authority to investigate whether experienced teachers are receiving disproportionately lower performance evaluations than they received in the past. After a school district prepares an annual sequence of honorable dismissal list, a JC member can demand that the school district provide information regarding the prior and most recent evaluation of its teachers, with each teacher identified only by the length of his or her service. If the review of this list reveals a troubling trend, the JC can submit a report to both the school board and the union.

Except for its five duties under the Act, the JC has no authority to modify the sequence of teacher dismissal.  Where the JC has authority to act, it must reach an agreement, by majority vote, no later than February 1 of any given school year for that agreement to affect the sequence of teacher dismissals during that school year.  If no agreement is reached by February 1, the Act’s default rules control the sequence of teacher dismissal.   Subject to the February 1 deadline, the JC’s agreement shall continue to apply to the sequence of teacher dismissals until the agreement is amended or modified by majority vote of the committee.

Does your CBA already address RIF?

For school districts with an existing collective bargaining agreement that addresses RIF issues, it may seem unnecessary and premature to form a JC now, where the collective bargaining agreement will continue to govern the sequence of teacher dismissals until it expires, or until June 30, 2013, whichever comes first.   However, the Act provides, without exception, that all school districts’ JCs must hold a first meeting no later than December 1, 2011.  The committee is not required to accomplish anything at this first meeting, but neither is it prohibited from reaching agreements prior to the expiration of existing contracts.  For those school districts with teacher rating systems that are inconsistent with the Act, there is no reason not to decide now how the ratings will transition to the new system.  And because a teacher’s position in the coveted group four may depend on that teacher’s last three evaluations, decisions made now by the JC may affect the sequence of teacher dismissals in the 2013-2014 school year.

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.