Samuelson, Dolores

From: Silver, Benjamin

Sent: Wednesday, October 12, 2022 1:44 PM
To: Public Access
Subject: FW: OMA Request for Review 2022 PAC 73515
Attachments: CONFIDENTIAL 2022 PAC 73515.pdf; 2022 PAC 73515 Redacted.pdf

73515 PB resp

From: Mary A. Karagiannis <Mkaragiannis@hlerk.com>

Sent: Tuesday, October 11, 2022 9:30 PM
To: Silver, Benjamin <Benjamin.Silver@ilag.gov>
Cc: Steven M. Richart <srichart@hlerk.com>
Subject: [EXTERNAL] OMA Request for Review 2022 PAC 73515

Dear Mr. Silver:

On behalf of the Board of Education of Hinsdale Township High School District No. 86, attached is the confidential
response regarding the above-referenced matter. We have also included a redacted version that may be disclosed to
Mr. Kleber. Additionally, through the below secure link, you can download the exhibits referenced in the response.
Board Exhibits C, D, F, H and I are confidential and, pursuant to OMA Section 3.5 (g), should not be disclosed to Mr.
Kleber or any third party. If you have any issues downloading the exhibits, please let me know.

LINK TO EXHIBITS:

Thank you,

Mary

HODGES LOIZZI
Mary A. Karagiannis, Attorney
Hodges, Loizzi, Eisenhammer, Rodick & Kohn LLP
500 Park Boulevard, Suite 1000, Itasca, IL 60143
p 847.670.9000 w www.hlerk.com e mkaragiannis@hlerk.com 847.971.6097

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HODGES LOIZZI
Eisenhammer Rodick & Kohn
www.hlerk.com

Steven M. Richart I srichart@hlerk.com

October 11, 2022

Via Electronic Mail

Mr. Benjamin J. Silver

Assistant Attorney General
Public Access Bureau
100 West Randolph Street
Chicago, Illinois 60601

RE: OMA Request for Review-2022 PAC 73515

Dear Mr. Silver:

We are writing in response to your September 27, 2022, request for information regarding the
above-referenced matter. We represent the Board of Education of Hinsdale Township High School
District 86 (the "District" or the "Board") and submit this response on the District’s behalf.

In Mr. Kleber’s Request for Review, he asserts that the Board violated the Open Meetings Act, 5
ILCS 120/1 et seq. ("OMA") by improperly entering closed session to discuss the
Superintendent’s performance goals. Mr. Kleber’s argument is based on two flawed theories:
First, he argues that a "technical interpretation" of the word of "performance," as used in Section
2(c)(1) of OMA, should be applied. Second, Mr. Kleber expresses several policy concerns for
keeping discussions of performance goals in open session. Both points are inconsistent with the
legal and practical applications of Section 2(c)(1). Indeed, there is clear and binding precedent
regarding this very issue. In interpreting OMA, an Illinois Appellate Court has already held a
school board’s discussion of the superintendent’s performance goals is appropriately conducted in
closed session, despite the plaintiffs in that case having brought forth the same two arguments
articulated by Mr. Kleber in his Request for Review. See Gosnell v. Hogan, 179 III.App.3d 161, 174-
75 (5th Dist. 1989). (If Mr. Kleber were aware of Gosnell v. Hogan, we doubt he would have filed
this Request for Review.) Notably, Mr. Kleber cites to almost no authority in his Request for
Review and nothing that is as relevant as Gosnell. Regardless, we address the merits of Mr. Kleber’s
arguments in further detail below.

As further explained below and demonstrated in the enclosed exhibits, the Board’s discussion
regarding the Superintendent’s performance goals on August 29, 2022, was properly in closed
session pursuant to Section 2(c)(1) of OMA, which allows the Board to enter closed session to
discuss the following:

The appointment, employment, compensation, discipline, performance, or

dismissal of specific employees, specific individuals who serve as independent
contractors in a park, recreational, or educational setting, or specific volunteers of

Itasca Peoria O’Fallon

500 Park Boulevard, Suite 1000 401 SW Water Street, Suite 106 637 West US Hwy 50, Unit 600
Itasca, IL 60143 Peoria, IL 61602 O’Fallon, IL 62269
P 847.670,9000 P 309.671.9000 P 618.622.0999
HOD GE s Loi z zi www.hlerk.com
Eisenharnmer Rodick & Kohn
Mr. Benjamin J. Silver, Assistant Attorney General
October 11, 2022

the public body or legal counsel for the public body, including hearing testimony on
a complaint lodged against an employee, a specific individual who serves as an
independent contractor in a park, recreational, or educational setting, or a volunteer
of the public body or against legal counsel for the public body to determine its
validity. However, a meeting to consider an increase in compensation to a specific
employee of a public body that is subject to the Local Government Wage Increase
Transparency Act may not be closed and shall be open to the public and posted and
held in accordance with this Act.

Because the goal-setting process in this case inherently and inextricably involved detailed and
confidential discussions regarding the Superintendent’s performance, merits, and other personal
information, Section 2(c)(1) applies and the performance goals were properly discussed in closed
session.

Pursuant to your request, and in order to provide you with the best evidence demonstrating what
occurred on August 29, 2022, we provide the following exhibits:

Board Exhibit A Agenda for the August 29, 2022, Special Board Meeting

Board Exhibit B Special Open Session Meeting Minutes for the August 29, 2022,
Special Board Meeting

Board Exhibit C CONFIDENTIAL Closed Session Minutes of the August 29, 2022,
Special Board Meeting, in DRAFT form

Board Exhibit D CONFIDENTIAL Verbatim Recording of the August 29, 2022,

Closed Session Special Board Meeting

Board Exhibit E Superintendent Contract

Board Exhibit F CONFIDENTIAL Copies of the draft Superintendent Performance

Goals

Board Exhibit G Final Superintendent Performance Goals

Board Exhibit H CONFIDENTIAL Superintendent Evaluation

Board Exhibit I CONFIDENTIAL Correspondence Between Board Members

Per OMA Section 3.5(g), the District requests that the confidential items noted above not be
provided to the requester or any third party.

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Mr. Benjamin J. Silver, Assistant Attorney General
October 11, 2022

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HODGES LOIZZI
Eisenharnrner Rodick & Kohn
www.hlerk.com

Mr. Benjamin J. Silver, Assistant Attorney General

October 11, 2022

A. The Request for Review Fails to Address Controlling Precedent Regarding

Discussion of Superintendent Performance Goals in Closed Session.

Preliminarily, Mr. Kleber’s statement of the issue, as written in his Request for Review, is
misleading and creates a false dichotomy. He seems to believe that the Board can either create
goals or discuss performance, but not both. This is simply unrealistic and impractical. Additionally,
Mr. Kleber ’s arguments have been explicitly and specifically rejected by the Illinois Appellate
Court in Gosnell v. Hogan, which, to our knowledge, has never been challenged, overruled, or
criticized by the courts or the Attorney General’s Office.

First, as with Mr. Kleber, the plaintiffs in Gosnell urged the court to invoke a rigid and technical
application of OMA. The Court, however, determined that such an approach was inappropriate.
While acknowledging that OMA ’s exceptions must be strictly construed, the Court also noted:

Statutes must be given sensible interpretation by the courts, and a strict

construction means only that it must be confined to such subjects or applications
as are obviously within its terms and purposes, and it does not require such an
unreasonably technical construction that the words used cannot be given their fair
and sensible meaning in accord with the obvious legislative intent.

Gosnell v. Hogan, 179 I1l.App.3d 161, 171 (5th Dist. 1989). By Mr. Kleber’s own characterization, he
is advocating a "technical interpretation of the language of the Section 2(c)(1) exemption of
OMA," which is clearly contrary to governing case law. See Kleber Request for Review, p. 5.

Second, with respect to Mr. Kleber ’s policy concerns, the Court in Gosnell rejected similar
concerns articulated by the plaintiffs. In recognizing the realities of the creation of Superintendent
performance goals, the Court stated:

Common experience dictates that discussions of matters relating to complaints

against an officer and goals developed in attempting to resolve the complaints can
become one and the same. An attempt to discuss only the complaints in closed
session and then the proposed goals in open session would be tedious and
frustrating when the goals are in direct response to and interrelated with the
complaints they are intended to resolve. In order to discuss goals effectively, it is
necessary to consider simultaneously the complaints which prompted the need for

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HODGES LOIZZI
Eisenhamrner Rod ick & Kohn
www.hlerk.com

Mr. Benjamin" Silver, Assistant Attorney General

October 11, 2022

the goals. The complaints present problems, and the goals are intended solutions.
Forcing the Board to discuss the solutions in public would result in one of two
equally unfavorable outcomes. First, the Board would run the risk of exposing
personal information regarding the Superintendent to the public. Second, if the
Board were to attempt discussion of the solution without making reference to the
problems, the discussion would be inhibited by the precaution given to avoiding the
mention of confidential information in public. Neither of these results are
consistent with the Act’s purpose of protecting the public’s business, and therefore
should not be promoted.

179 Ill. App. 3d at 175-76. The analysis in Gosnell is particularly on point because the school board
in that case discussed both highly personal information of the Superintendent and complaints.
Similarly, the Board in this case discussed
which are very
personal topics. See e.g., Board Exhibit D, 10:47-16:52; 2:25:45-2:33:00. Additionally, the Board
discussed certain criticisms and made certain critiques, such as

. See e.g., Board Exhibit D, 17:00-56:57; 1:36:22-1:44:59; 2:33:33-

2:54:55.

See
e.g., Board Exhibit D, 2:33:33-2:49:47.

These discussions are sensitive and potentially damaging to

any employee’s reputation, as well as the Board’s ability to frankly discuss these matters, if they
were held in open session. Accordingly, following the reasoning of Gosnell, these discussions
should not be required to be held in public.

B. The Legislative Intent and Case Law Outweigh Mr. Kleber’s Stated Policy
Concerns.

Mr. Kleber lists several policy concerns that he believes weigh in favor of the Board discussing the
performance goals in open session. However, in addition to ignoring the considerations expressed
in Gosnell, Mr. Kleber is also ignoring the clear intent of the legislature.

The Board’s ability to speak candidly about the rationale and merits behind the performance goals
outweighs any interests in the discussions being open to the public. " [S]ection 2(c)(1) of OMA is
intended to permit public bodies to candidly discuss the relative merits of individual employees, or
the conduct of individual employees." Ill. Att’y Gen. Pub. Acc. Op. No. 22-010 (internal
quotations and citations omitted). At least one of those policy considerations listed by Mr. Kleber
is in direct opposition to the intent behind Section 2(c)(1). Specifically, Mr. Kleber cites providing

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Eisenhammer Rodick & Kohn
Mr. Benjamin J. Silver, Assistant Attorney General
October 11, 2022

the public "the underlying justification(s) for/against each objection" as a reason to hold the
discussions in open session. See Kleber Request for Review, p. 5. The creation of the performance
goals and the rationale for each goal are directly tied to the Superintendent’s progress toward her
previous goals and inherently evaluative. In order to honor the intent of OMA, as articulated by
the Attorney General’s Office, and allow the Board to speak candidly about the Superintendent
and set her performance goals, the Board must be in closed session; it cannot reasonably be
expected to create performance goals without discussing and evaluating the merits of the
Superintendent at the same time.

Further, it is important to recognize the statutory scheme surrounding the creation of performance
goals and evaluations of the Superintendent, which are individualized, highly protected, and
confidential. Under the School Code, a multi-year superintendent’s contract must be performance-
based and must contain performance and improvement goals, which are used to measure the
performance and effectiveness of the superintendent. 105 ILCS 5/10-23.8. Additionally, under
Section 24A-7.1 of the School Code," disclosure of [...] superintendent performance evaluations is
prohibited." 105 5/24A-7.1 (emphasis added).

The Superintendent in this case is under a multi-year contract, which includes baseline
performance goals under Section 10-23.8 of the School Code, but which also allows the Board to
establish additional performance goals, which were the subject of the discussion during the August
29, 2022, Board meeting. See Board Exhibit E. In the process of creating the additional
performance goals, it is abundantly clear that the Board utilized and referred to the
Superintendent’s evaluation in their discussions.

Because the creation of the performance goals necessitates a discussion regarding

the evaluation of the Superintendent’s performance, disclosure of which is prohibited, it naturally
follows that the discussions to create the performance goals are likewise prohibited from
disclosure. The legislature was clearly interested in protecting the reputations of certain public
employees, including superintendents, by going as far as prohibiting the public disclosure of their
performance evaluations. Accordingly, most reasonably prudent school boards -
-- that discuss the
performance goals of a superintendent would have such discussions in closed session.

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HODGES LOIZZI
Eisenharnmer Roc-lick & Kohn
www.hlerk.com

Mr. Benjamin J. Silver, Assistant Attorney General

October 11, 2022

Indeed, as recognized by the Illinois Association of School Boards in The Superintendent Evaluation
Process, which is one of the only resources cited by Mr. Kleber, "any discussion involving the
superintendent’s actual performance or the board’s evaluation of the superintendent can and
should be conducted in a closed meeting." Kleber Request for Review, Ex. B (emphasis added).
As the Board in this case was discussing the Superintendent’s actual performance while
formulating her performance goals, the discussion was properly in closed session.

See e.g., Board Exhibit D,

16:52-19:45; 32:42-33:37; 53:35-56:57; 1:36:22-1:44:59; 2:33:33-2:49:47. It would have been
inappropriate and potentially in violation of the School Code for the Board to have had such a
discussion in public session as it drew from her performance evaluation, and such discussions
inappropriately could tarnish a public employee’s image and reputation.

C. Conclusion.

Mr. Kleber is concerned about the Board’s transparency with respect to setting the
Superintendent’s performance goals. In reality, the Board has gone above and beyond its legal
obligations by proactively publishing the performance goals on its website. To be clear, there is no
legal obligation for the Board to have done that. While Mr. Kleber would like to know more about
"how the sausage it made," the courts, legislature, and the Attorney General’s Office have already
determined that those discussions properly may occur in closed session.

For the above stated reasons, the District respectfully requests that you find no OMA violation
occurred during the August 29, 2022, closed session Board meeting. If you have any further
questions or require further information, please do not hesitate to contact us.

Sincerely,

HODGES, LOIZZI, EISENHAMMER,

RODICK & KOHN LLP

Enclosures
10632653

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