{ "id": 3749472, "name": "DELORIS HENRY, Plaintiff-Appellant, v. SCOTT ANDERSON et al., Defendants-Appellees", "name_abbreviation": "Henry v. Anderson", "decision_date": "2005-04-18", "docket_number": "No. 4-04-0867", "first_page": "952", "last_page": "958", "citations": [ { "type": "official", "cite": "356 Ill. App. 3d 952" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "718 N.E.2d 191", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "pin_cites": [ { "page": "201", "parenthetical": "if the parties filed opposing motions for summary judgment on the same claims and issues and the trial court denied one motion and granted the other, the appellate court may review the denial" } ], "opinion_index": 0 }, { "cite": "187 Ill. 2d 341", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1131036 ], "year": 1999, "pin_cites": [ { "page": "358", "parenthetical": "if the parties filed opposing motions for summary judgment on the same claims and issues and the trial court denied one motion and granted the other, the appellate court may review the denial" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/187/0341-01" ] }, { "cite": "758 N.E.2d 848", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "pin_cites": [ { "page": "851" } ], "opinion_index": 0 }, { "cite": "197 Ill. 2d 466", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 259095 ], "year": 2001, "pin_cites": [ { "page": "470-71" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/197/0466-01" ] }, { "cite": "313 N.E.2d 457", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "pin_cites": [ { "page": "459", "parenthetical": "\"if such issues are not further supported by evidentiary facts through affidavits or such, summary judgment is then appropriate\"" } ], "opinion_index": 0 }, { "cite": "57 Ill. 2d 376", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5407090 ], "year": 1974, "pin_cites": [ { "page": "380", "parenthetical": "\"if such issues are not further supported by evidentiary facts through affidavits or such, summary judgment is then appropriate\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/57/0376-01" ] } ], "analysis": { "cardinality": 538, "char_count": 13408, "ocr_confidence": 0.756, "pagerank": { "raw": 1.3881941959850483e-07, "percentile": 0.6421519169650431 }, "sha256": "19237d8b34935c1c33d516fb04955d8fe8078e1870b3519ac60f96b8d438f2b8", "simhash": "1:59b29eb63f81eb82", "word_count": 2205 }, "last_updated": "2023-07-14T16:18:02.423948+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DELORIS HENRY, Plaintiff-Appellant, v. SCOTT ANDERSON et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE APPLETON\ndelivered the opinion of the court:\nIn these two cases consolidated in the trial court, plaintiff, Dr. Deloris Henry, sued seven members of the board of education of Champaign Community Unit School District No. 4. She alleged that on October 29 and 30, 2002, they violated section 2a of the Open Meetings Act (Act) (5 ILCS 120/2a (West 2002)) by holding closed meetings without first citing any statutory exception to the requirement of open meetings. The parties filed cross-motions for summary judgment, and the trial court granted defendants\u2019 motion in both cases. Plaintiff appeals, arguing that as a matter of law, defendants violated section 2a.\nWe find no violation in the meeting of October 29. In the meeting of October 30, however, defendants announced they were closing the meeting to the public to discuss potential litigation. They never found, however, that the litigation was probable or imminent. Nor did they state a basis for any such finding. These omissions violated sections 2a and 2(c)(ll) of the Act (5 ILCS 120/2a, 2(c)(ll) (West 2002)). Therefore, we affirm the trial court\u2019s judgment in part, reverse it in part, and remand this case for consideration of remedies.\nI. BACKGROUND\nIn a meeting on October 29, 2002, the school board voted to go into closed session \u201cto discuss an employee matter, specifically the reclassification of employment.\u201d The employee was plaintiff.\nOn October 30, 2002, plaintiff filed a complaint in case No. 02 \u2014 CH\u2014287, alleging that on October 29, defendants had violated section 2a of the Act. Section 2a provides:\n\u201cThe vote of each member on the question of holding a meeting closed to the public and a citation to the specific exception contained in [sjection 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.\u201d (Emphasis added.) 5 ILCS 120/2a (West 2002).\nAccording to plaintiff, the reference to \u201can employee matter\u201d or the \u201creclassification of employment\u201d was not \u201ca citation to [any] specific exception\u201d in section 2(c) of the Act (5 ILCS 120/2(c) (West 2002)).\nOn October 30, 2002, the school board convened again, and its president, Scott Anderson, stated:\n\u201cPRESIDENT ANDERSON: The motion to approve the agenda, which includes employment matters regarding classification of employee, potential litigation, as well as negotiations discussion, all in executive session. I need a motion.\nBOARD MEMBER KLAUS: So move.\nPRESIDENT ANDERSON: So moved by Mr. Klaus.\nBOARD MEMBER VAN NESS: Second.\nPRESIDENT ANDERSON: Second by Mr. Van Ness. All in favor? (Those in favor so indicated in the affirmative.)\nPRESIDENT ANDERSON: Opposed? (No response.)\n:',t * *\nPRESIDING OFFICER ANDERSON: I need a motion to go into executive session for an employment matter regarding a reclassification of employee.\nBOARD MEMBER WAMPLER: So move.\nBOARD MEMBER STORCH: Second.\nPRESIDING OFFICER ANDERSON: As well as a contested litigation matter as well as negotiations discussions.\nBOARD MEMBER WAMPLER: So move.\nBOARD MEMBER STORCH: Second.\u201d (Emphases added.)\nAgain, the employee was plaintiff.\nOn November 12, 2002, plaintiff filed a complaint in case No. 02\u2014 CH \u2014 300, alleging that defendants had violated section 2a in the October 30 meeting by \u201cfailing and refusing to cite to a specific exception and by combining into a singular closed session unrelated matters.\u201d\nIn the hearing on the cross-motions for summary judgment, the trial court reasoned that if the legislature had intended to require a \u201cstatutory citation,\u201d it would have used those words. Instead, it required \u201ca citation to the specific exception.\u201d 5 ILCS 120/2a (West 2002). In the court\u2019s view, the words \u201cemployee matter\u201d and \u201creclassification of employment\u201d were a clear citation to the \u201cemployment\u201d exception in section 2(c)(1) of the Act (5 ILCS 120/2(c)(l) (West 2002)). Although an additional citation to the statute itself might have been judicially helpful, to hold it was essential to a valid citation would have \u201c exalt [ed] form over substance.\u201d Because defendants had disclosed the substance of the applicable exception, the court granted their motion for summary judgment.\nThis appeal followed.\nII. ANALYSIS\nA. Meeting of October 29, 2002\nSection 2(a) sets down two conditions for holding a closed meeting. The first condition is substantive: the meeting must fall into one of the 23 exceptions listed in section 2(c) (5 ILCS 120/2(c) (West 2002)). 5 ILCS 120/2(a) (West 2002). These exceptions \u201cshall be strictly construed against closed meetings.\u201d 5 ILCS 120/1(2) (West 2002). The second condition is procedural: the public body must close the meeting \u201cin accordance with [section 2a]\u201d (5 ILCS 120/2a (West 2002)). 5 ILCS 120/2(a) (West 2002). Section 2a requires the public body to vote on whether to close the meeting to the public (the meeting need not be closed, even if it falls into one of the exceptions in section 2(c)). 5 ILCS 120/2a (West 2002). Section 2a further requires the public body, at the time of the vote, to \u201ccit[e] to the specific exceptional contained in [s]ection 2 of this Act[,] which authorizes the closing of the meeting to the public\u201d and to record that citation in the minutes of the meeting. 5 ILCS 120/2a (West 2002).\nPlaintiff argues \u201cthere was no citation to the [s]tatute[,] as required by [s]ection 2a[,] prior to a declaration being made that the [b]oard was going into closed session.\u201d (Emphasis added.) As the trial court correctly observed, however, section 2a does not require a citation to the statute; it requires \u201ca citation to the specific exception contained in\u201d the statute (5 ILCS 120/2a (West 2002)). To \u201ccite\u201d an exception means to quote it or call attention to it. See Merriam-Webster\u2019s Collegiate Dictionary 208 (10th ed. 2000). One of the exceptions in section 2(c) is \u201c[t]he *** employment *** of specific employees of the public body, including hearing testimony on a complaint lodged against an employee to determine its validity.\u201d 5 ILCS 120/2(c)(l) (West 2002). By referring to an \u201cemployee matter\u201d and \u201creclassification of employment,\u201d defendants adequately identified the exception in section 2(c)(1). An additional citation to the statutory subsection might have been helpful but was not required. Citing the exception was sufficient.\n\u201cIt is also notable,\u201d plaintiff argues, \u201cthat the exception set forth in [section 2(c)(1)] relating to the employment or dismissal of specific employees of the public body permit\u00eds] hearing testimony only on a disciplinary complaint.\u201d (Emphasis added.) That is not what section 2(c)(1) says. Rather, it says: \u201cA public body may hold closed meetings to consider *** [t]he *** employment *** of specific employees of the public body, including hearing testimony on a complaint lodged against an employee to determine its validity.\u201d (Emphasis added.) 5 ILCS 120/ 2(c)(1) (West 2002). \u201cIncluding\u201d is a nonrestrictive word. In any event, if plaintiff means to imply that defendants never provided her with a disciplinary complaint, she fails to cite any evidentiary materials in support of that implication. See 210 Ill. 2d R. 341(e)(6) (\u201cappropriate reference to the pages of the record on appeal\u201d); Carruthers v. B.C. Christopher & Co., 57 Ill. 2d 376, 380, 313 N.E.2d 457, 459 (1974) (\u201cif such issues are not further supported by evidentiary facts through affidavits or such, summary judgment is then appropriate\u201d).\nIn our de novo review (see Harrison v. Hardin County Community Unit School District No. 1, 197 Ill. 2d 466, 470-71, 758 N.E.2d 848, 851 (2001)), we find no violation of the Act in the meeting of October 29, 2002. We affirm the summary judgment in defendants\u2019 favor and the denial of plaintiffs motion for summary judgment as to the October 29 meeting in case No. 02 \u2014 CH\u2014287.\nB. Meeting of October 30, 2002\nThe same reasoning applies to the meeting of October 30, 2002: by referring to \u201can employment matter regarding a reclassification of an employee,\u201d defendants clearly invoked the exception in section 2(c)(1).\nIn the October 30 meeting, however, defendants violated the Act by invoking an additional exception to the requirement of open meetings without following through with the conditions attached to that exception. By using the word \u201clitigation,\u201d they clearly evinced their intention to invoke the \u201clitigation\u201d exception in section 2(c)(ll). (One must understand \u201cnegotiations\u201d to mean \u201cnegotiations regarding the litigation.\u201d) Section 2(c)(ll) reads as follows:\n\u201cLitigation, 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.\u201d 5 ILCS 120/2(c)(ll) (West 2002).\nThus, the \u201clitigation\u201d exception is a forked path. If the litigation has been filed and is pending, the public body need only announce that in the proposed closed meeting, it will discuss litigation that has been filed and is pending. If the litigation has not yet been filed, the public body must (1) find that the litigation is probable or imminent and (2) record and enter into the minutes the basis for that finding. Evidently, the legislature intended to prevent public bodies from using the distant possibility of litigation as a pretext for closing their meetings to the public.\nWhen announcing the agenda of the October 30 meeting, Anderson, the president of the school board, characterized the litigation as merely \u201cpotential.\u201d Shortly afterward at the time of the vote on whether to close the meeting to the public, he described the litigation as a \u201ccontested litigation matter.\u201d To judge from the transcript of the October 30 meeting, which is attached to the complaint in case No. 02 \u2014 CH\u2014300, defendants never explicitly found that litigation was probable or imminent, and never expressed any basis for such a finding, before going into closed session. Arguably, litigation must be filed and pending to be \u201ccontested.\u201d But in the phrase \u201ccontested litigation matter,\u201d it is unclear whether \u201ccontested\u201d modifies \u201clitigation\u201d or \u201cmatter.\u201d Anderson never disavowed his earlier statement about the potentiality of the litigation.\nKeeping in mind that the exceptions to the requirement of open meetings are to be strictly construed (see 5 ILCS 120/1(2) (West 2002)), we hold that defendants failed to dispel the initial impression that litigation was, as of yet, potential rather than filed and pending. Strict construction leaves no room for ambiguity in the announcement of exceptions. Because the school board, through its president, announced to the public that \u201cpotential litigation\u201d would be one of the topics of discussion in the closed meeting, the board violated the Act by failing to state, on the record, (1) a finding that litigation was probable or imminent and (2) a basis for such a finding. See 5 ILCS 120/2(c)(ll) (West 2002).\nThe school board could have closed the October 30 meeting solely in reliance on the \u201cemployment\u201d exception in section 2(c)(1) (5 ILCS 120/2(c)(l) (West 2002)). But the board also cited the exception for potential litigation. See 5 ILCS 120/2(c)(ll) (West 2002). It is unclear from the record what this potential litigation was or whether the board even discussed it in the closed meeting. Case No. 02 \u2014 CH\u2014287, which plaintiff filed on October 30, 2002, was the only litigation pending as of that date. As that lawsuit concerned only the board\u2019s alleged violation of the Act, it was in no way germane to the question of plaintiffs employment. As the board failed to announce what litigation was to have been discussed, pending or potential, we are unable to assume that the litigation under discussion by the board was case No. 02 \u2014 CH\u2014287. Regardless of whether defendants actually discussed \u201clitigation\u201d in the closed meeting of October 30, 2002, they violated the procedural requirement of section 2a by announcing their intention to discuss an impermissible topic in the closed meeting (i.e., potential litigation concerning which they had not made the requisite findings).\nWe hold that the trial court erred in entering summary judgment in defendants\u2019 favor on the complaint in case No. 02 \u2014 CH\u2014300. Rather, the court should have entered summary judgment in plaintiffs favor in that case. See Arangold Corp. v. Zehnder, 187 Ill. 2d 341, 358, 718 N.E.2d 191, 201 (1999) (if the parties filed opposing motions for summary judgment on the same claims and issues and the trial court denied one motion and granted the other, the appellate court may review the denial).\nIII. CONCLUSION\nFor the foregoing reasons, we affirm the trial court\u2019s judgment in part (No. 02 \u2014 CH\u2014287), reverse it in part (No. 02 \u2014 CH\u2014300), and remand this case for consideration of remedies (No. 02 \u2014 CH\u2014300).\nAffirmed in part and reversed in part; case remanded.\nTURNER and STEIGMANN, JJ, concur.", "type": "majority", "author": "JUSTICE APPLETON" } ], "attorneys": [ "Robert G. Kirchner (argued), of Robert G. Kirchner Law Office, of Champaign, for appellant.", "Michael J. Tague (argued), of Flynn, Palmer & Tague, of Champaign, for appellees." ], "corrections": "", "head_matter": "DELORIS HENRY, Plaintiff-Appellant, v. SCOTT ANDERSON et al., Defendants-Appellees.\nFourth District\nNo. 4\u201404\u20140867\nArgued March 22, 2005.\nOpinion filed April 18, 2005.\nRobert G. Kirchner (argued), of Robert G. Kirchner Law Office, of Champaign, for appellant.\nMichael J. Tague (argued), of Flynn, Palmer & Tague, of Champaign, for appellees." }, "file_name": "0952-01", "first_page_order": 970, "last_page_order": 976 }