In June, the Public Access Counselor (PAC) issued a non-binding opinion holding that board members of a school district did not violate the Open Meetings Act (OMA) when partaking in intermittent private email exchanges involving public business.

The allegation that prompted the PAC’s review was that school board members held a meeting via email in violation of the OMA and took final action prior to a meeting. Specifically, the board president sent emails concerning appointments of board members to leadership positions and negotiation teams. In response to these accusations, the board provided all relevant emails as well as a written response asserting that none of the emails constituted a meeting under the OMA and that no final action was taken during the email exchange.

The PAC noted that under Section 1.02 of the OMA (5 ILCS 120/1.02), emails between members can constitute a meeting if at least three members of a seven member board engaged in contemporaneous, interactive email communications concerning “public business.” After reviewing district emails, however, the PAC found that no more than two board members exchanged emails. Additionally, no emails sent by the board president elicited responses in which a majority of a quorum of the board discussed public business. This led the PAC to conclude that the exchange of emails did not constitute a meeting and, thus, the emails were not subject to the requirements of the OMA.

With respect to the allegation that the board took final action prior to a meeting, Section 2(e) of the OMA (5 ILCS 120/2(e)) requires a board to publicly recite prior to final action the nature of the matter to be voted on and all other important information that will inform the public of the business to be conducted. The PAC found that the board did not violate this provision of the OMA as there was no final action via email. The PAC recognized that the board president did seem to tentatively appoint members of the board to the negotiation teams, but those appointments were not finalized. Further, the board complied with the OMA by subsequently voting to elect officers and appoint board members to the negotiation teams during open meetings.

This opinion, while favorable to the district, includes a caution for board members to be mindful when discussing public business through electronic communications that such communications may inadvertently become meetings subject to OMA requirements. Board members, therefore, should exercise caution when utilizing email to discuss public business, and avoid such practices if possible.