OFFICE OF THE ATTORNEY GENERAL

STATE OF ILLINOIS

KWAME RAOUL
ATTORNEY GENERAL

July 10, 2023

Via electronic mail

Mr. David Giuliani
Reporter
Patch.com
david.giuliani@patch.com

RE: OMA Request for Review – 2023 PAC 76975

Dear Mr. Giuliani:

The Public Access Bureau has received the attached redacted answer to your
Request for Review from the Hinsdale Township High School District No. 86 Board of
Education (Board). The Board has provided this office with records in addition to its answer,
but OMA prohibits this office from disclosing those records to you. 1

You may, but are not required to, reply in writing to the public body's answer. If
you choose to reply, we ask that you submit your reply to this office within seven business days
of your receipt of this letter. 2 Please send a copy of your reply to the Board as well. If you have
questions, my e-mail address is Shannon.Barnaby@ilag.gov. Thank you.

Very truly yours,

SHANNON BARNABY
Senior Assistant Attorney General
Public Access Bureau

Attachment

1
5 ILCS 120/3.5(g) (West 2022).
2
5 ILCS 120/3.5(c) (West 2022).

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. David Giuliani
July 10, 2023
Page 2

cc: Via electronic mail

Mr. Matthew M. Swift
Robbins Schwartz
55 West Monroe Street, Suite 800
Chicago, Illinois 60603
mswift@robbins-schwartz.com
 55 West Monroe St., Suite 800
Chicago, IL 60603-5144

MATTHEW M. SWIFT
mswift@robbins-schwartz.com

July 7, 2023 VIA EMAIL: Shannon.Barnaby@ilag.gov

Shannon Barnaby
Senior Assistant Attorney General
Public Access Bureau
500 S. Second Street
Springfield, IL 62701

Re: OMA Request for Review – 2023 PAC 76975

Dear Ms. Barnaby:

Please be advised that this office is a legal representative for the Hinsdale Township High School District
No. 86 Board of Education (the “District” or the “Board”). The District has requested that we respond to
the above-referenced Request for Review on its behalf. Please direct all future communications regarding
this matter to our office.

This correspondence and the attachments provided via the file transfer link below serve as the District’s
timely response to your letter of June 27, 2023.1 You asked the District to provide a written response to Mr.
Giuliani’s allegations that the Board discussed and took final actions in closed session regarding Tamara
Prentiss’s administrative leave and Dr. Chris Covino’s designation as the acting superintendent. You also
requested copies of the minutes (Exs. A-B), and the closed session verbatim recording (Exs. C-D) for the
May 15, 2023 Board meeting. Finally, you requested a description of whether the Board discussed, made a
decision, and/or held a vote about these topics in closed session, during open session, or on other occasions.
No final action was taken in closed session during the May 15, 2023 meeting or otherwise outside of an
open meeting, and the District did not violate the Illinois Open Meetings Act (“OMA”).

I. Relevant Background

The District is a public school district with more than 600 employees serving nearly 4,000 students in
portions of DuPage and Cook counties. In May 2023, Tamara Prentiss was employed as the District’s
Superintendent, and Dr. Chris Covino was the District’s Assistant Superintendent for Academics. On May
15, 2023, the Board held a special meeting that included two closed sessions. (Ex. A – May 15, 2023 Open
Meeting Minutes.) As we describe further in Section II below, the Board properly discussed the
appointment, employment, compensation, discipline, performance, or dismissal of specific employees and
attorneys for the District in closed session during this meeting pursuant to OMA Section 2(c)(1), but it did
not take any final action during closed session or otherwise outside of an open meeting.

1
Exhibit B (May 15, 2023 Closed Meeting Minutes) and Exhibits C-D (May 15, 2023 closed session verbatim
recordings) are provided only for your confidential review and are not for disclosure to Mr. Giuliani or the public. All
of the District’s exhibits are accessible via the following file transfer link:

Robbins Schwartz • Attorneys at Law p. 312.332.7760 | f. 312.332.7768 | www robbins-schwartz.com

 Ms. Shannon Barnaby
July 7, 2023
Page 2

II. The District’s Response to the Request for Review

Section 2.02(c) of the OMA provides that any agenda required for a meeting “shall set forth the general
subject matter of any resolution or ordinance that will be the subject of final action at the meeting.” 5 ILCS
120/2.02(c). Section 2(e) of the OMA also requires that “final action” must be taken in an open meeting
rather than during a closed meeting. 5 ILCS 120/2(e). Mr. Giuliani’s Request for Review objects to the lack
of a vote regarding Prentiss’s administrative leave or Dr. Covino’s designation as acting superintendent
during an open session of the May 15, 2023 meeting. The Board did not take any final action in the closed
sessions on May 15 or otherwise outside of an open meeting, but the District notified the public about
Prentiss’s leave and Dr. Covino’s role as the acting superintendent the next day. As Mr. Giuliani admits,
the Board also voted to affirm Prentiss’s leave and Dr. Covino’s designation as acting superintendent during
an open session at its next meeting on May 24, 2023. (Exhibit E – May 24, 2023 Open Meeting Minutes.)
As a result, decisions by Illinois courts and the Public Access Counselor make clear that the District did not
violate the OMA.

The OMA allows the Board to hold closed session meetings to consider “the appointment, employment,
compensation, discipline, performance, or dismissal” of employees, provided that the “vote of each member
on the question of holding a meeting closed to the public and a 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.” 5 ILCS
120/2(c)(1); 5 ILCS 120/2a. The Board did so here by explicitly citing OMA Section 2(c)(1) in open session
roll-call votes before each closed session and recording the basis for the closed sessions in the minutes. (Ex.
A.)

Illinois courts have found repeatedly that a public body’s discussion or consideration of employment
matters—even when reaching consensus or preparing decisions to be implemented and issued publicly
later—does not constitute “final action” in the context of the OMA. See Grissom v. Bd. of Ed. of Buckley-
Loda Cmty. Sch. Dist. No. 8, 75 Ill. 2d 314, 325-27 (Ill. 1979) (finding that preparing findings and voting
on and signing a written motion to dismiss a teacher in closed session was not final action where the board
also took a roll call vote in open session); People v. Bd. of Ed. of Dist. 170 of Lee & Ogle Ctys., 40 Ill. App.
3d 819, 823 (finding that the board “did not take any final action on such ‘general discussion’ or ‘tentative’
consensus at the closed session” about salaries that was inconsistent with the legislative intention) (2d Dist.
1976); Jewell v. Bd. of Educ., Duquoin Comm. Unit Schs., Dist. No. 300, 19 Ill. App. 3d 1091, 1094–95
(5th Dist. 1974) (finding no violation of the OMA where the board agreed in closed session not to rehire a
teacher and prepared a motion to that effect that was later approved in open session).

It is also clear that not all actions taken during closed sessions or implemented thereafter constitute final
action under the OMA, even in some cases when the decisions may signal a significant step by the public
body. See, e.g., Davis v. Bd. of Ed. of Farmer City-Mansfield Cmty. Unit Sch. Dist. No. 17, 63 Ill. App. 3d
495, 499 (4th Dist. 1978) (“[T]he statement in the statute that ‘final action’ may not be taken in a closed
session indicates that action that is not final may be taken.”); Bd. of Educ. of Springfield Sch. Dist. No. 186
v. Att’y Gen. of Ill., 2017 IL 120343, ¶¶ 6–11, 72–74 (Ill. 2017) (finding that signing separation agreement
in closed session one month before approval in open session and implementing agreement were not final
action violating the OMA). For example, state and federal courts in Illinois have concluded that authorizing
a request for mediation and adopting a resolution that states an intent to terminate employment are not final
actions requiring a vote in an open session. See Gosnell v. Hogan, 179 Ill. App. 3d 161, 169, 176 (5th Dist.
1989) (finding that board agreement in closed session to request mediation was not final action, even
without ratification during subsequent open session); Breuder v. Bd. of Trustees of Cmty. Coll. Dist. No.

Attorneys at Law
 Ms. Shannon Barnaby
July 7, 2023
Page 3

502, DuPage Cty., Illinois, No. 15-CV-09323, 2017 WL 5905707, at *4 (N.D. Ill. May 5, 2017) (finding
that a notice of intention to terminate is not a final action requiring an open session), citing Davis v. Bd. of
Ed. of Farmer City-Mansfield Cmty. Unit Sch. Dist. No. 17, 63 Ill. App. 3d 495, 499, 380 N.E.2d 58, 61
(4th Dist. 1978).

The Public Access Counselor also has acknowledged an understanding of “final action” that indicates the
action not only “must mark the consummation of the agency’s decisionmaking process,” but also “must be
one by which rights or obligations have been determined, or from which legal consequences will flow.” Ill.
Att’y Gen. PAC Req. Rev. 55838, issued September 13, 2019, at 3, quoting U.S. Army Corps of Engineers
v. Hawkes Co., Inc., 136 S. Ct. 1807, 1813 (2016). Further, the PAC has found that actions by a single
Board member do not amount to final action by the Board, even when the Board member appears to execute
and implement a substantive decision that the Board later approves in open session. Ill. Att’y Gen. PAC
Req. Rev. 55779, issued May 6, 2019 (finding no final action where Board member executed contract to
begin superintendent search process two weeks before Board approval in an open meeting).

Under the decisions described above, the facts provided in Mr. Giuliani’s Request for Review and the closed
session minutes and recordings demonstrate that the Board did not take any final action during its closed
sessions on May 15, 2023 or otherwise outside of an open meeting. The Board did not take any votes
regarding Prentiss’s leave or Dr. Covino’s designation as acting superintendent during these closed
sessions. Nor did the Board or any individual Board member take any actions that altered any of the
District’s rights or obligations, impacted District services, or revised District policies or procedures.

Attorneys at Law
 Ms. Shannon Barnaby
July 7, 2023
Page 4

Attorneys at Law
 Ms. Shannon Barnaby
July 7, 2023
Page 5

Although the Board was not required to do so, given the facts and the law described above, it also voted in
open session at the next Board meeting to publicly affirm Prentiss’s leave with pay status and Dr. Covino’s
designation as acting superintendent on May 24, 2023. Thus, even if the PAC were to find that such steps
required a final action, the Board would have taken that action by voting on the matters in open session at
its next meeting. As described above, court and PAC decisions have found no violation of the OMA despite
longer gaps between the alleged “final action” and a vote by the public body in open session.

III. Conclusion

For all of the foregoing reasons, and consistent with the OMA, case law, and PAC decisions, we respectfully
request that you find the District has met its burden for demonstrating that the Board did not take any final
action during closed session or otherwise outside of an open meeting, and that there has been no violation
of the OMA. If you find that the Board took final action outside of an open meeting, we request that you
find that any violation was cured by the Board’s vote in open session during the meeting on May 24, 2023.

Attorneys at Law
 Ms. Shannon Barnaby
July 7, 2023
Page 6

If you have any questions or require additional information, please do not hesitate to contact me.

Very truly yours,

ROBBINS SCHWARTZ

By: Matthew M. Swift

Attachments:
Exhibit A – May 15, 2023 Open Meeting Minutes
Exhibit B – May 15, 2023 Closed Meeting Minutes – CONFIDENTIAL
Exhibit C – May 15, 2023 First Closed Session Recording – CONFIDENTIAL
Exhibit D – May 15, 2023 Second Closed Session Recording – CONFIDENTIAL
Exhibit E – May 24, 2023 Open Meeting Minutes

cc: Catherine Greenspon, Board President, Hinsdale Township High School District No. 86 Board of
Education (via e-mail with attachments)
Joseph J. Perkoski, Esq. (via e-mail with attachments)

Attorneys at Law