Tuesday, August 30, 2016

New laws to impact access to closed meeting recordings, student residency procedures

Ben Schwarm
As the General Assembly spent the spring months debating and passing legislation, the governor is now using the summer to review proposals approved by legislators. In doing so, a number of initiatives that will impact local school governance have become law. 

Two initiatives that will carry substantial changes for how boards of education deal with closed session recordings and student residency procedures were recently added to Illinois statutes.

Public Act 99-515, sponsored by Rep. Jeanne Ives (R-Wheaton), amends the Open Meetings Act (OMA) to require that a public body’s closed session minutes and verbatim recordings be made available for review by a newly elected or appointed public official.  It does not allow the removal of closed session minutes or verbatim recordings from the public body’s administrative offices, and the items must be reviewed in the presence of certain listed officials of the public body.

IASB Deputy Executive Director Ben Schwarm said the original opposition from IASB was due to significantly altering previously negotiated and agreed OMA requirements for the purpose of closed session verbatim recordings. “We opposed the bill because it far surpasses the intent of the original verbatim recording legislation,” indicated Schwarm. “School boards need to be careful with this implementation and should consult the district’s local attorney for guidance.”

Kimberly Small, IASB General Counsel, also cautioned boards to be aware of the changes contained in the amended Act, paying particular attention to where closed session verbatim recordings and closed session minutes can be accessed and who must be present.
Kimberly Small

“There have been a lot of a questions about the intent of the new language that requires the access to be given in the public body’s main office or official storage location, in the presence of a records secretary, an administrative official, or any elected official of the public body,” said Small.

“The intent of the language is that no one requesting access views or listens alone. This is to prevent misuse and/or removal of closed session minutes or the closed session verbatim recording from district offices,” she said. “It is also intended to prevent the board member who wants access from being alone and in a situation where he or she could be accused of taking or doing something he or she did not do. Board members should work with their counsel to develop logistics of how to best comply locally with these requirements.”

The measure became law on June 30 and is effective immediately. IASB’s PRESS service will be addressing the changes in Issue 93, due to be published in October.

Major changes in the procedures for challenging student residency, made by Public Act 99-0670, should also be on board member’s radar beginning Jan. 1, 2017.

Sponsored by Rep. William Davis (D-Hazel Crest) the law changes notification procedures and the appeal process of a non-resident student for which tuition is required to be charged.
The 2016 edition of IASB’s Digest of Bills Passed
contains descriptions of recently adopted bills.

Amongst the new requirements are that the notice of non-residency given to the individual who enrolled the student, which currently notifies the individual of the tuition amount to be paid, must also detail specific reasons why the board believes the student is a nonresident of the district. If the individual challenges the district’s non-residency determination by requesting a residency hearing, then the notice of hearing will need to notify the individual that any written evidence and testimony or witnesses not disclosed to the district at least three calendar days prior to the hearing are barred. This requirement also applies to the district, which must disclose all of the written evidence and testimony that it may submit during the hearing, as well as a list of witnesses it may call, to the individual requesting the hearing at least three calendar days in advance of the hearing.

Following the residency hearing, the board of education will still decide whether or not the student is a resident of the district. However, as of Jan. 1, 2017, the individual who enrolled the student will be entitled to petition the regional superintendent of schools to review the board of education’s decision. After reviewing any written evidence and testimony submitted by the parties during the hearing, as well as any written minutes or transcript of the hearing, the regional superintendent will issue a written decision as to whether or not there is clear and convincing evidence that the student is a resident.

IASB opposed the legislation because it removes the final decision making authority of student residency from locally elected school boards, and instead puts the outcome in the hands of regional superintendents. The newly added review requirements will substantially prolong the process, potentially creating increased costs for both school districts and families.

“Though we were able to make some moderate improvements to this bill during the legislative process, this law will add some very specific procedural and notification changes for school districts regarding residency hearings,” cautioned Schwarm. “Districts need to make sure they consult IASB’s PRESS policy service and their district attorney.”

Descriptions of bills passed by the General Assembly and under consideration by the governor can be found in the 2016 edition of IASB’s Digest of Bills Passed.