Health board has more apparent violations of Open Meetings Act

GILMAN — There are apparently additional violations of the Illinois Open Meetings Act by the Ford-Iroquois Public Health Department Board in connection with its May 20 meeting.

The Paxton Record and The News-Gazette reported earlier this week that the board discussed matters in closed session that were not permitted under the exemption the board cited in the Illinois Open Meetings Act.

Since then, the Paxton Record has learned that the board also took final action on two motions following the two-hour closed session, even though neither item was listed on the meeting's agenda.

Iroquois County State's Attorney Jim Devine, who also serves as the health department's legal counsel, told the Paxton Record on Thursday that he saw no issue with the legality of the action taken. He said it must be legal since there is no way to tell what action will be needed prior to a closed session occurring.

"I'm OK with everything that happened," Devine said.

The board of health's president, Dr. Kevin Brucker, and board member Rod Copas both said they also see no legal issue.

"If it goes to court for any reason, I don't have any doubt we will be upheld in our action," said Copas, who is also the chairman of the Iroquois County Board. "I don't have any concerns about it."

Illinois Press Association attorney Don Craven, however, said case law clearly shows that if a matter is not on the agenda, it should not be voted on. Craven referred to an Illinois appellate court case from 2002 — Rice v. Adams County — which resulted in the court voiding action the county board took because the action was not listed on the agenda for the meeting.

"The board can discuss matters that are not on the agenda, but the proper procedure is to discuss them (and) reserve final action until the next meeting when it can be properly noticed and on the agenda," Craven said.

Following the board of health's two-hour closed meeting, the board voted unanimously to temporarily strip Public Health Administrator Doug Corbett of his ability to hire, fire, reassign or discipline his employees. The board also voted unanimously to draft a letter to all health department employees in order to "better evaluate" their work environment, morale and goals.

Neither proposal was on the agenda.

Corbett has declined to comment on whether he will contest the action.

The Paxton Record and The News-Gazette reported earlier this week that Devine acknowledged after Monday's meeting that the board had discussed the "discipline of specific employees" of the agency, including Corbett, during the closed session, despite not citing the applicable exemption in the Open Meetings Act.

Devine acknowledged that the closed session should have been called to discuss the discipline of employees.

"It was not only (Corbett) but other employees we were talking about," Devine said.

Both the agenda, as well as the verbal motion to enter executive session, made by Copas, had called for a closed session to discuss "a reasonable potential danger to the safety of employees, staff, the public or public/private property."

Copas' motion and the agenda referred to only a portion of the full text of the applicable exemption, which says closed sessions are allowed to discuss "security procedures and the use of personnel and equipment to respond to an actual, a threatened, or a reasonably potential danger to the safety of employees, staff, the public, or public property."

Craven said Thursday that discussions in closed session are limited to the scope of whichever exemption is cited.

"There's an appellate court opinion out of the Second District ... which stands very clearly for the proposition that once you're in closed session, you can only talk about matters that are covered by the exemptions which were cited in the motion to close the meeting," Craven said.

Despite Devine's acknowledgment that disciplinary measures were discussed, Copas and Brucker said Thursday that they felt all discussions in closed session were related to the exemption that was cited.

Brucker declined to say what "potential danger" existed. He also would not say what security procedures were discussed to respond to the danger.

Brucker did say, however, that "as a result of what we found out (during the closed session), we don't feel there was any sort of threat to the public's interest."

Copas and Brucker both pointed out that the agenda was drafted by Corbett, rather than the board, so many board members did not know what exactly was to be discussed in closed session.

"None of the board members, other than myself maybe, had any inkling of what this was in reference to," Copas said.

On Thursday, Copas said, "I can understand why (Corbett) referenced that" Open Meetings Act exemption.

The board first met behind closed doors with Corbett. After Corbett exited the meeting, the board then met individually with two health department nurses.

"After we got one side of the story, we had the employees come in and give their side of the story," Brucker said.

Brucker said that based on "what was talked about," the board took the action it did after the meeting was reopened to the public.

"We were just trying to protect our employees," Brucker said.

Based on the evidence of an improperly closed meeting, the Paxton Record has requested the health department release the audio tape of the closed session. Devine declined to release the tape Tuesday.

A Freedom of Information Act request was then filed later on Tuesday, but the tape has yet to be provided.

In a response to the Paxton Record's FOIA request, health department FOIA officer Julie Clark said: "I received the following response from Mr. Corbett: 'We did not have our recorder "on" during the closed session. Jim Devine specifically brought in his own recorder.'"

The health department's response does not state that the request is being denied, but it does say, "By providing this documentation to you, we now consider this FOIA request closed."

Craven said a government body is required by state law to keep a "verbatim transcript" of every closed session. Craven said the means of complying with the law "could be done by any variety of means," most often by tape recording.

The Illinois attorney general's office issued an opinion Wednesday, Craven said, that stated that the Springfield school district improperly took action in a closed session that was not recorded. Because the district did not have the meeting recorded, and the meeting's minutes were not adequate, the attorney general's office is requiring the school board to compile and release a summary of the discussions of the closed session, Craven said.

Craven would not say whether he believes the health department in this case should be required to release the tape of its closed session.

Craven did offer a general thought, though: "It would seem to me that where there is a tape and they're improperly (meeting) in closed session, rather than compiling a summary (of the discussion), it would be more efficient and more accurate to simply release the tape."

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