FILED November 16, 2016

Carla Bender 4th District Appellate NO. 4-15-0963 Court, IL

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

KIRK ALLEN and JOHN KRAFT, ) Appeal from Plaintiffs-Appellants, ) Circuit Court of v. ) Clark County THE CLARK COUNTY PARK DISTRICT ) No. 15MR4 BOARD OF COMMISSIONERS, ) Defendant-Appellee. ) Honorable ) Millard Scott Everhart, ) Judge Presiding.

JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justices Harris and Appleton concurred in the judgment and opinion.

OPINION

¶1 In February 2015, defendant, the Clark County Park District Board of

Commissioners (Board), conducted a regularly scheduled meeting, during which it took action

on two items listed on its agenda: “X. Board Approval of Lease Rates” and “XI. Board Approval

of Revised Covenants.” The Board voted to approve both items.

¶2 The next day, plaintiffs, Kirk Allen and John Kraft, filed a complaint alleging that

the Board failed to comply with the Open Meetings Act (Act) (5 ILCS 120/1 to 7.5 (West 2014))

because, among other things, the Board provided an insufficient explanation—referred to as a

“public recital” in the Act—of items X and XI before voting to approve them. The trial court

granted the Board’s motion to dismiss the complaint. Plaintiffs appeal. We reverse.

¶3 I. BACKGROUND

¶4 On the evening of February 17, 2015, the Board conducted a regularly scheduled meeting. Prior to that meeting, the Board posted a meeting agenda both at its principal office and

on its website. The agenda included two items relevant to this appeal: “X. Board Approval of

Lease Rates” and “XI. Board Approval of Revised Covenants.” The agenda included no further

explanation of those two items.

¶5 At the meeting, the following discussion occurred concerning items X and XI,

according to the facts alleged in plaintiffs’ second amended complaint. Board Vice President

Ron Stone said, “[A]pproval of *** of the lease rates *** entertain a motion.” (Omissions in

original.) Board Commissioner Larry Yargus then moved for the Board to approve the “rates that

came from appraisal.” The Board voted to approve the rates. Stone then said, “[O]k, uh board

approval for the revised covenants.” Yargus moved for the Board to “accept the revised

covenants.” The Board voted to accept the covenants.

¶6 After the votes, Stone said, “[O]ne comment, folks, as soon as this gets recorded

at the courthouse, then these’ll be viewing [sic] for public record, now that they have been

approved. Hopefully get recorded tomorrow.” A member of the public then asked the Board to

describe what it had just voted on. Stone responded, “They gotta [sic] get recorded at the

courthouse first. I’m sorry.” Yargus said, “[I]t’s just a formality.”

¶7 The following day, plaintiffs pro se filed a complaint for injunctive and

declaratory relief against the Board, claiming that the Board violated the Act. Plaintiffs alleged

that the posted agenda insufficiently set forth the subject matter of items X and XI and that the

Board failed to explain the nature of items X and XI before voting on them.

¶8 In March 2015, the Board filed a motion to dismiss under section 2-615 of the

Code of Civil Procedure (735 ILCS 5/2-615 (West 2014)), along with a motion seeking sanctions

under Illinois Supreme Court Rule 137 (eff. July 1, 2013). The Board claimed that plaintiffs were

-2- members of a group called Edgar County Watchdogs and operated a website called Illinois

Leaks. The Board further claimed that plaintiffs were frequent litigants against public bodies and

that their suit in this case was frivolous and intended to harass the Board because plaintiffs

disagreed with the Board’s plan to develop a subdivision in Mill Creek Park.

¶9 In July 2015, an attorney entered an appearance to represent plaintiffs. Later that

month, plaintiffs filed a four-count second amended complaint, which is the subject of this

appeal. The complaint alleged that the Board violated (1) section 2.02(c) of the Act (5 ILCS

120/2.02(c) (West 2014)) because the agenda failed to sufficiently notify the public about the

subject matter of items X and XI (count I); (2) section 2(c) of the Act (5 ILCS 120/2(c) (West

2014)) by discussing items X and XI during a closed executive session meeting (count II); (3)

section 2(e) of the Act (5 ILCS 120/2(e) (West 2014)) by failing to give a sufficient public recital

of items X and XI before taking action on those items (count III); and (4) the Board’s own

written policy by discussing items X and XI during a closed executive session meeting (count

IV).

¶ 10 Count III of the second amended complaint requested the following relief: (1) an

injunction prohibiting the Board from committing future violations of section 2(e) of the Act; (2)

an order declaring as void the final actions taken by the Board at the February 2015 meeting; and

(3) an order awarding plaintiffs costs and attorney fees.

¶ 11 In August 2015, the Board filed a section 2-615 motion to dismiss plaintiffs’

second amended complaint along with another motion for Rule 137 sanctions. After hearings in

September and November 2015, the trial court granted the Board’s motion to dismiss plaintiffs’

second amended complaint but denied the Board’s motions for sanctions.

¶ 12 Plaintiffs appeal the trial court’s dismissal of count III of their second amended

-3- complaint. (The Board does not appeal the denial of its motion for sanctions.)

¶ 13 II. ANALYSIS

¶ 14 Plaintiffs argue that the trial court erred by granting defendant’s section 2-615

motion to dismiss count III of plaintiffs’ second amended complaint. Count III alleged that the

Board violated section 2(e) of the Act by failing to make a sufficient public recital of items X

and XI prior to voting on those items.

¶ 15 A. Section 2-615 of the Code of Civil Procedure

¶ 16 A section 2-615 motion to dismiss (735 ILCS 5/2-615 (West 2014)) challenges

the legal sufficiency of a complaint based on defects apparent on its face. Reynolds v. Jimmy

John’s Enterprises, LLC,

,

. The critical question

is whether the allegations in the complaint, construed in the light most favorable to the plaintiff,

are sufficient to state a cause of action upon which relief may be granted.

In considering a

section 2-615 motion to dismiss, the court shall consider “[a]ll facts apparent from the face of the

complaint, including any attached exhibits.” Hadley v. Doe,

, ¶ 29,

. A dismissal under section 2-615 is reviewed de novo.

¶ 17 B. Statutory Interpretation

¶ 18 This appeal requires us to interpret section 2(e) of the Act (5 ILCS 120/2(e) (West

2014)). Our primary objective when interpreting statutes is to “ascertain and give effect to the

true intent of the legislature.” People v. McFadden,

, ¶ 26. The plain language of

the statute is the most reliable indicator of legislative intent. Id. The Act explicitly states that the

general intent of the Act is “to ensure that the actions of public bodies be taken openly and that

their deliberations be conducted openly.” 5 ILCS 120/1 (West 2014). We therefore interpret the

language of the Act with those stated purposes in mind.

-4- ¶ 19 C. Section 2(e) of the Open Meetings Act

¶ 20 Section 2 of the Act (5 ILCS 120/2 (West 2014)) is entitled “Open Meetings.” It

provides that “[a]ll meetings of public bodies shall be open to the public,” subject to enumerated

exceptions. Id. The section concludes with subsection (e) (5 ILCS 120/2(e) (West 2014)), which

provides, in full, the following:

“Final action. No final action may be taken at a closed meeting.

Final action shall be preceded by a public recital of the nature of

the matter being considered and other information that will inform

the public of the business being conducted.”

¶ 21 D. Case Law Addressing Section 2(e)

¶ 22 The only Illinois case that we have found interpreting the public-recital

requirement of section 2(e) is Board of Education of Springfield School District No. 186 v.

Attorney General of Illinois,

,

. In that case,

this court addressed whether the Board of Education of Springfield complied with the public-

recital requirement of section 2(e) before it approved an agreement terminating the employment

of its superintendent, Dr. Walter Milton, Jr. Prior to conducting an open meeting, the Board

posted an agenda on its website that included an item entitled, “ ‘Approval of a Resolution

regarding the *** Agreement *** Between Superintendent *** Milton *** and the Board.’ ” Id.

¶ 7 (Omissions in original.). A hyperlink directly underneath that item linked to a digital copy of

the agreement. Id. ¶ 39. At the meeting, the Board’s president introduced the item by stating as

follows:

“ ‘I have item 9.1, approval of a resolution regarding the ***

Agreement. The Board president recommends that the Board ***

-5- vote to approve the *** Agreement between *** Milton *** and

the Board.” Id. ¶ 7 (Omissions in original.).

After that introduction, the Board voted to approve the agreement. Id.

¶ 23 On appeal, we rejected the argument that the Board violated section 2(e) by

failing to give a sufficient public recital prior to approving the agreement. Id. ¶¶ 40-42. We held

that “section 2(e) of the Act requires that the public entity advise the public about the general

nature of the final action to be taken and does not *** require that the public body provide a

detailed explanation about the significance or impact of the proposed final action.” Id. ¶ 42.

¶ 24 The only other case we have found addressing the public-recital requirement of

section 2(e) is an unpublished federal district court opinion cited by the parties, Roller v. Board

of Education of Glen Ellyn School District No. 41, No. 05 c 3638

(N.D. Ill.

Jan. 18, 2006). In that case, the plaintiff was a fourth-year probationary teacher who argued that

the school board violated the public-recital requirement of section 2(e) when, during a board

meeting, it decided not to renew the teaching contracts of a group of teachers, including plaintiff,

without specifically naming her. Id. *4. The agenda posted prior to the meeting stated that the

board would be considering “Recommendations for Employment and Dismissal.” Id. The

minutes of the meeting stated that one board member moved, and another seconded, “to accept

the recommendation to release fourth year full-time probationary teachers at the end of the 2004-

2005 school year as presented on the attached.” Id. Attached to the minutes was a resolution

specifically naming plaintiff and authorizing her dismissal. Id.

¶ 25 The Roller court rejected the plaintiff’s public-recital argument. Id. The court

noted that it had found no case discussing how specific a public recital must be to comply with

section 2(e). Id. In lieu of case law, the court focused on the statutory language stating that the

-6- board was required to recite “ ‘the nature of the matter being considered’ ” and “ ‘inform the

public of the business being conducted.’ ” Id. (quoting 5 ILCS 120/2(e) (West 2014)). The court

concluded that the agenda, along with the recital of the motion described in the minutes, was

sufficient to satisfy section 2(e). Id.

¶ 26 E. This Case

¶ 27 In this case, there is no question that the Board’s votes to approve the lease rates

and the covenants were both final actions. Accordingly, section 2(e) of the Act required that

those actions be preceded by a “public recital” of “the nature of the matter being considered and

other information that will inform the public of the business being conducted.” 5 ILCS 102/2(e)

(West 2014). We therefore must determine whether the facts alleged in plaintiffs’ second

amended complaint, construed in the light most favorable to plaintiffs, were sufficient to state a

violation of the Act upon which relief may be granted. We conclude that plaintiffs’ allegations

were sufficient.

¶ 28 In accordance with the decisions in Springfield and Roller, we decide the present

case based on the plain language of the statute. Section 2(e) of the Act provides only the most

general description of what a public recital must entail. The section provides that the public

recital must describe “the nature of the matter being considered” and include such information

that will inform the public of the “business being conducted.” Id. The Act provides no

explanation about how specifically the public body must describe the “nature of the matter.”

¶ 29 Although we are unsure precisely what standard of specificity is required of a

public recital, we can say with confidence that the Board’s actions in this case were insufficient.

In reaching our decision, we have found helpful an opinion issued by the Illinois Attorney

General (AG). “While Attorney General opinions are not binding on the courts, a well-reasoned

-7- opinion of the Attorney General is entitled to considerable weight, especially in a matter of first

impression in Illinois.” Burris v. White,

,

(2009). In Public

Access Opinion No. 14-001 (2014 Ill. Att’y Gen. Pub. Access Op. No. 14-001), the AG, in

construing the public-recital provision of section 2(e), concluded that the public recital must

include “the key terms of [the] proposed public contract or agreement.”

. We agree that

the “key-terms” rule is helpful when evaluating whether a public recital was sufficient.

¶ 30 In this case, the Board members introduced item X as an “approval of *** lease

rates” “that came from appraisal.” Item XI was introduced as “approval for the revised

covenants.” We hold that those introductions were insufficient to inform the public of the “nature

of the matter” and the “business being conducted.” The public recital did not provide the public

any of the key terms of the lease agreement or covenants. The public was uninformed of what

was being leased. Was it canoes? Was it camping equipment? Was it real property being

developed into a housing subdivision? Who knows? Nor did the recital indicate who was leasing

the property or for how long or how the Park District was going to be compensated. In

Springfield, we held that the public-recital requirement “does not *** require that the public

body provide a detailed explanation about the significance or impact of the proposed final

action.” Springfield,

,

. We stand by that holding.

However, Springfield does not stand for the proposition that the public body may provide no

details at all. The overarching concern is whether the recital sufficiently informed the public of

the nature of the matter being considered. Here, the Board’s recital failed to so inform.

¶ 31 We find it telling that, after the Board voted on the lease rates and covenants, a

member of the public asked the Board to explain what had happened. The Board responded, not

by providing additional information, but by telling the audience, “They gotta [sic] get recorded at

-8- the courthouse first. I’m sorry.” Whatever the standard might be for a public recital, the Board

failed to meet it in this case.

¶ 32 The supreme court has granted leave to appeal in Springfield, No. 120343 (May

25, 2016). The supreme court may take advantage of the opportunity to provide guidance on the

public-recital provision of Section 2(e) of the Act. We choose to refrain from attempting to

provide a detailed standard. However, we are confident that no matter what standard the supreme

court eventually adopts, the public recital given by the Board in this case was insufficient.

¶ 33 We conclude that the allegations made in count III of plaintiffs’ second amended

complaint were sufficient to state a violation of section 2(e) of the Act. Therefore, the trial court

erred by dismissing count III.

¶ 34 III. CONCLUSION

¶ 35 For the foregoing reasons, we reverse the trial court’s judgment.

¶ 36 Reversed.

-9-