OFFICE OF THE ATTORNEY GENERAL

STATE OF ILLINOIS

KWAME RAOUL
ATTORNEY GENERAL

May 5, 2023

Via electronic mail

Mr. Brandon Hix
Bhix.century21@gmail.com

Via electronic mail

Mr. Larry Cox

The Honorable Peter Schwartzman

Mayor
City Council
City of Galesburg
55 West Tompkins Street
Galesburg, Illinois 61401
pschwart@ci.galesburg.il.us

RE: OMA Request for Review – 2023 PAC 75029; 75075; 75082

Dear Mr. Hix, Mr. Cox, and Mr. Schwartzman

This determination is issued pursuant to section 3.5(e) of the Open Meetings Act
(OMA) (5 ILCS 120/3.5(e) (West 2020)). For the reasons explained below, the City of
Galesburg City Council (City Council) improperly discussed certain matters that were outside
the scope of the exception, to the general requirement that public bodies conduct public business
openly, that the City Council relied upon to close its December 5, 2022, and December 19, 2022,
meetings.

The above-referenced Requests for Review were filed by City Council members

500 South Second Street, Springfield, Illinois 62701 • (217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046
100 West Randolph Street, Chicago, Illinois 60601 • (312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806
601 South University Ave., Carbondale, Illinois 62901 • (618) 529-6400 • TTY: (877) 675-9339 • Fax: (618) 529-6416
Mr. Bradley Hix
Mr. Larry Cox
The Honorable Peter Schwartzman
May 5, 2023
Page 2

Bradley Hix and Larry Cox.1 In 2023 PAC 75029, Mr. Hix alleged that the City Council
improperly discussed the creation of an assistant city manager position in the closed session
portion of its December 5, 2022, meeting. In 2023 PAC 75075, Mr. Hix alleged that the City
Council improperly discussed salary issues pertaining to employment positions rather than
specific employees during the closed session portion of its December 19, 2022, meeting. Mr.
Cox reiterated that allegation in 2023 PAC 75082 and further asserted that the City Council
improperly discussed the hiring of a consultant to perform a salary study.

On January 23, 2023, this office sent copies of the Requests for Review to the
City's mayor, in his capacity as the head of the City Council, and asked for copies of the agendas,
open and closed session minutes, (draft form if necessary), and closed session verbatim
recordings of the City Council's December 5, 2022, and December 19, 2022, meetings. This
office also requested a written response that identifies the exceptions in section 2(a) of OMA 2
that the City Council cited as its bases for entering closed session, along with a detailed
explanation of the applicability of the exceptions to any portions of the closed sessions that
concerned the creation of an assistant city manager position, salaries for employees or
employment positions, and/or a salary study. On January 30, 2023, counsel for the City Council
submitted a response. On February 2, 2023, this office forwarded copies of the written response
to Mr. Cox and Mr. Hix. Mr. Cox replied the following day; Mr. Hix did not reply.

DETERMINATION

OMA is intended "to ensure that the actions of public bodies be taken openly and
that their deliberations be conducted openly." 5 ILCS 120/1 (West 2020). Accordingly, section
2(a) of OMA provides that all meetings of a public body must be open to the public unless the
discussion falls within the scope of one of the exceptions set out in section 2(c) of OMA. The
section 2(c) exceptions are to be "strictly construed, extending only to subjects clearly within
their scope." 5 ILCS 120/2(b) (West 2020); 3 see also Henry v. Anderson, 356 Ill. App. 3d 952,
957 (4th Dist. 2005) (strictly construing section 2(c)(1) of OMA).

1
Although Mr. Hix and Mr. Cox alleged violations by individual public officials, their submissions
concern two closed session discussions by the City Council. OMA provides that Requests for Review may be filed
against public bodies, not individual public officials. 5 ILCS 120/3.5(a) (West 2020)) ("A person who believes that
a violation of this Act by a public body has occurred may file a request for review with the Public Access Counselor
established in the Office of the Attorney General not later than 60 days after the alleged violation."). (Emphasis
added.)

5 ILCS 120/2(a) (West 2021 Supp.), as amended by Public Act 102-813, effective May 13, 2022.
2

5 ILCS 120/2(b) (West 2021 Supp.), as amended by Public Act 102-813, effective May 13, 2022.
3
Mr. Bradley Hix
Mr. Larry Cox
The Honorable Peter Schwartzman
May 5, 2023
Page 3

Section 2(c)(1) of OMA, 4 the exception on which the Board relied to close the
meetings at issue, permits a public body to enter closed session to discuss "[t]he appointment,
employment, compensation, discipline, performance, or dismissal of specific employees of the
public body or legal counsel for the public body, including hearing testimony on a complaint
lodged against an employee of the public body or against legal counsel for the public body to
determine its validity."

In construing this exception, the Attorney General has concluded that "the
General Assembly did not intend to permit public bodies to hold general discussions concerning
categories of employees in closed session pursuant to section 2(c)(1)." Ill. Att'y Gen. Pub. Acc.
Op. No. 16-013, issued December 23, 2016, at 4. Rather, "section 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. 16-013, at 5 (quoting Ill.
Att'y Gen. Pub. Acc. Op. No. 12-011, issued July 11, 2012, at 3); see also 1974 Ill. Att'y Gen.
Op. No. S-726, issued March 22, 1974, at 128 (the "purpose of the [2(c)(1)] exception is to
protect the identity and reputation of a person"). The Public Access Bureau has previously
determined that "[t]he use of the term 'specific employees' in section 2(c)(1) significantly limits
the scope of the exception" to "the hiring merits, performance, conduct or terms of employment
of individual employees." Ill. Att'y Gen. PAC Req. Rev. Ltr. 12658, issued July 7, 2011, at 4.

December 5, 2022, meeting

The City Council's response to this office stated that during its December 5, 2022,
meeting, the City Council entered closed session pursuant to section 2(c)(1) "to address potential
responses to an active EEOC [Equal Employment Opportunity Commission] complaint pending
against the City. Some of the allegations of the EEOC compliant include allegations of racial
and sexual discrimination and an overall hostile work environment." 5 The response further
explained that the EEOC may require the hiring of qualified minority applicants as a remedy for
systemic discrimination and to prevent future discrimination. Therefore, the response stated, the
City Council discussed the possible creation of either a Deputy Public Works Director position
or a position that would encompass the role of both Public Works Director and Assistant City
Manager upon the retirement of the individual who served as Public Works Director at the time

4
5 ILCS 120/2(c)(1) (West 2021 Supp.), as amended by Public Act 102-813, effective May 13,
2022.

5
Letter from Paul L. Mangieri, Barash & Everett, LLC, to Steve Silverman, Office of the
Attorney General, Bureau Chief, Public Access Bureau (January 30, 2023), at [2].
Mr. Bradley Hix
Mr. Larry Cox
The Honorable Peter Schwartzman
May 5, 2023
Page 4

of the meeting; filling the new position with a qualified minority applicant was presented as a
possible option for addressing the EEOC complaint.

Based on this office's review of the closed session verbatim recording, the
upcoming retirement of the Public Works Director was referenced in the context of a broader
discussion about the possibility of creating a new employment position. The City Council did
not substantively discuss the conduct, performance, qualifications or terms of employment of any
specific employee or applicant. Instead, the discussion focused on possibly hiring a future
minority applicant to fill a new employment position in response to the EEOC complaint.
Because the discussion concerned the possibility of creating a new employment position rather
than any specific employee or applicant for employment, section 2(c)(1) did not authorize the
City Council to discuss that matter in closed session.

The City Council's response to this office also suggested that section 2(c)(11) of
OMA 6 "may have authorized the closing of the open meeting as the closed session discussion
involved discussion concerning ongoing litigation." 7 Section 2(c)(11) of OMA permits public
bodies to enter closed session to discuss:

Litigation, when an action against, affecting or on behalf of

the particular public body has been filed and is pending before a
court or administrative tribunal, or when the public body finds that
an action is probable or imminent, in which case the basis for the
finding shall be recorded and entered into the minutes of the closed
meeting.

Black's Law Dictionary defines "litigation" as "[t]he process of carrying on a lawsuit" or "[a]
lawsuit itself." Black's Law Dictionary 1017 (9th ed. 2009). It is unclear to this office whether
at the time of the December 5, 2022, meeting, the EEOC complaint pending against the City had
advanced to a stage that could be considered "litigation before [an] * * * administrative
tribunal[ ]" under section 2(c)(11) of OMA. Regardless, the City Council did not publicly cite
the section 2(c)(11) exception before entering closed session as required by section 2a of OMA 8
("The vote of each member on the question of holding a meeting closed to the public and a

6
5 ILCS 120/2(c)(11) (West 2021 Supp.), as amended by Public Act 102-813, effective May 13,
2022.

7
Letter from Paul L. Mangieri, Barash & Everett, LLC, to Steve Silverman, Office of the
Attorney General, Bureau Chief, Public Access Bureau (January 30, 2023), at [3].
8
5 ILCS 120/2a (West 2020).
Mr. Bradley Hix
Mr. Larry Cox
The Honorable Peter Schwartzman
May 5, 2023
Page 5

citation to the specific exception contained in Section 2 of this Act which authorizes the closing
of the meeting to the public shall be publicly disclosed at the time of the vote and shall be
recorded and entered into the minutes of the meeting."). Accordingly, section 2(c)(11) did not
authorize the City Council to hold a closed session discussion about the possibility of creating a
new employment position in response to the EEOC complaint.

December 19, 2022, Meeting

The City Council's response to this office stated that the City Council's December
19, 2022, closed session was prompted by concerns about employees receiving salary increases
to compensate them for taking on additional responsibilities after the former City Attorney
resigned to take another position. The response also stated that "the executive session discussed
compensation levels for all individual city employees who were not covered by a collective
bargaining agreement or under contract. Discussion was also held relative to a
comprehensive salary study for use in determining appropriate salaries for all non-union or non-
contract employees." 9 In his reply, Mr. Cox stated that the City Council discussed (1) hiring a
consultant to perform a salary study, (2) a salary study that was conducted 34 years ago, and (3)
the creation of six new employment positions, including job titles and job descriptions. He
asserted those discussions should have been held in open session.

Based on this this office's review of the closed session, certain portions of the
discussion focused on specific City employees. To the extent that the City Council discussed the
salaries of existing employees and creating new positions to be filled by existing employees,
those discussions directly pertained to the performance, compensation and terms of employment
of specific employees and therefore were permissible under section 2(c)(1) of OMA. Other
portions of the discussion, however, involved unfilled positions and the possibility of creating
positions without reference to any specific employees or applicants who could potentially fill the
positions. In addition, the salary study that was the primary topic of discussion concerned a
comprehensive review of the compensation of employees in various categories. Because those
portions of the closed session did not include discussions of specific employees or applicants for
employment and instead concerned employment positions and categories of employees, section
2(c)(1) of OMA did not authorize the City Council to hold the discussions in closed session.

In accordance with the conclusions expressed above, this office requests that the
City Council remedy its improper closed session discussions by voting to make publicly
available the verbatim recording of the December 5, 2022, closed session and the portions of the

9
Letter from Paul L. Mangieri, Barash & Everett, LLC, to Steve Silverman, Office of the
Attorney General, Bureau Chief, Public Access Bureau (January 30, 2023), at [3].