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Board votes to continue secrecy of 'closed session' minutes from Daley Years (1995 - 2009)

Almost unnoticed at the very end of its monthly meeting on July 22, 2009, the Chicago Board of Education voted to continue the cover up of all discussion it had during the years since Chicago Mayor Richard M. Daley acquired dictatorial control of the city's public schools system in July 1995.

Chicago Board of Education member Tariq Butt (above, far right) made the semi-annual motion to hold in secret every "executive session" discussion since Mayor Daley was granted complete control over Chicago's public school in July 2995. Butt's motion, which he generally has made twice a year for the past 14 years (under a requirement of the Illinois Freedom of Information Act) results in the complete secrecy of all of the discussions held by the members of the Board since the beginning of mayoral control. The most recent iteration of Butt's motion took place on July 22, 2009. The members of the Chicago Board of Education go for months without ever discussing their lengthy business agendas in public meetings, recessing into executive session as soon as the public participation and executive reports are made at the monthly meetings. Although the minutes of the executive sessions are required by law, a technicality in the law allows the Board -- unilaterally -- to review them and vote to maintain secrecy. No Board member since Daley took over the schools has objected to this practice. Above (left to right): Roxanne Ward, Clare Munana, Michael Scott, Tariq Butt. Not in the photograph are two Board members (Alberto Carrero and Peggy Davis) who also voted in favor of the motion. Board members Norman Bobins was not present during the meeting. Substance photo by George N. Schmidt.On the 14th anniversary of the beginning of mayoral control in Chicago, the Chicago Board voted unanimously and without debate in favor of a motion made by Board member Tariq Butt to maintain the secrecy of the minutes of all closed sessions of the Board between July 1, 1995 and June 30, 2009. The motion stated that the Board members had read the materials and determined that they still had to be held in secrecy.

The effect of the motion is to make completely secret all of the actual discussions on crucial public issues that have been held by the Chicago Board of Education since the onset of mayor control with the passage of the Amendatory Act of 1995. The Amendatory Act, passed when Republicans controlled both houses of the Illinois General Assembly and the governor's office and were implementing what was then known as the "Gingrich Revolution" at the state level, not only gave Chicago's mayor the power to appoint a school board and Chief Executive Officer without any additional oversight. It also mandated vast privatization and stripped two unions (the Chicago Teachers Union and the Cook County College Teachers Union) of the right to collectively bargain on a broad range of issues and of the right to strike.

Above, two of the members of the current Chicago Board of Education who voted in favor of the motion to maintain the secrecy of 14 years of Board deliberations sit in the back row during the Public Participation potion of the July 22, 2009, Board meeting, while the Board's three most powerful executives sit in front of them. Back Row: Alberto Carrero (hands folded, wearing suit and tie) and Peggy Davis (staring at the camera). Foreground: Board Attorney Patrick Rocks; Chief Education Officer Barbara Eason-Watkins; Chief Executive Officer Ron Huberman. Like another Daley appointee to the Board since 1995 (Board President Gery Chico, who served from July 1995 through June 2001), Huberman's main qualification for running the nation's third largest school system was that he had once served as "Chief of Staff" to Mayor Richard M. Daley. Substance photo by George N. Schmidt. During the early years of the Amendatory Act, the name of the Chicago Board of Education was the "Chicago School Reform Board of Trustees." Although the Act was supposed to enable the school system to benefit from "business models" which were highly praised at the time, Daley immediately put two politicians with virtually no business experience into the top positions at Chicago's public schools. Gery Chico, the first mayorally appointed Chicago school board President, had been Daley's chief of staff. Paul Vallas, whom Daley appointed to the then unprecedented post of CEO, had been Daley's budget director. Neither of them had any reputation or experience in the private sector. Nor did they have any educational experience or credentials.

After the vote on his motion, Butt told Substance that he had read all of the materials and had determined that they had to remain secret. When asked how many pages were in the minutes for the 14 years in question that he had read, he said he did not know. Chicago Board of Education Communications officials also said they did not know and that Substance would have to file a request under the Illinois Freedom of Information Act (FOIA) to even learn how many pages were in the record that the Chicago Board of Education has been keeping secret for 14 years. The structure of the Chicago Board of Education since mayoral control began was a radical change from anything that had previously been known, even in Chicago. Within six months of the onset of mayoral control, the Chicago Board of Education was meeting only once a month, and doing most of its business in secrecy. A structure which had previously been in place required the Board to have a number of standing committee which held public meetings on the subject under their purview, and Board members would serve on those committees. Daley's control over the Board led to the abolition of those public discussions.

Chicago Board of Education member Tariq Butt begins to read his motion to keep all of the minutes of the Board's closed sessions between July 1995 and July 2009 a secret at the end of the Board's meeting of July 22, 2009. A physician, Butt was appointed to the Board by Chicago Mayor Richard M. Daley in July 1995 and has remained on it since then. Butt told Substance after the vote on his motion to maintain the secrecy of 14 years of mayoral control that he had reviewed the records and determined that they must remain secret. The Illinois Freedom of Information Act (FOIA) requires that public bodies maintain minutes of their closed sessions, but allows the bodies to maintain those minutes in secret if the members of the body vote after reviewing the materials that they still require secrecy. When asked by Substance how many pages of minutes the materials contained, Butt said he could not say. Substance photo by George N. Schmidt.Within a year after Daley took over the Board, the structure still in place was largely enacted. The Board would host a "Public Participation" portion of the meeting during which members of the public were allowed to speak for two minutes. After the public participation was ended, the Board meeting would actually begin. (No minutes are kept during "Public Participation"). Usually the Board meeting has begun with a roll call, followed by the Pledge of Allegiance to the Flag.

If there are major executive reports to be given, the Board then goes on to hear those reports, either from the CEO or from one of the chiefs or "officers" heading the various Board departments.

Following the reports (which almost never give rise to more than some pro forma questions), the Board recesses into closed session. The motion to put the Board into closed session (here, from the Agenda of Action of the Board meeting of January 28, 2009) reads as follows:

MOTION TO CLOSE. MOTION ADOPTED that the Board hold a closed session to consider information regarding appointment, employment, compensation, discipline, performance or dismissal of employees pursuant to Section 2(c)1 of the Open Meetings Act; purchase of real property pursuant to Section 2(c)5 of the Open Meetings Act; setting of a sale price or lease of real property pursuant to Section 2(c)(6) of the Open Meetings Act; and pending litigation and litigation which is probably or imminent involving the Board pursuant to Section 2(c)(11) of the Open Meetings Act."

Once the Board members vote to go into closed session, they leave the Board chambers and members of the public are told the chambers are closed. In Chicago, the pubic is kept out of the Board chambers, which are locked, until the Board returns from closed session.

Secrecy of all deliberations over a fourteen year period

The vote to maintain the secrecy of its closed sessions has been routinely made in January and July of each year since the Chicago School Reform Board of Trustees was created by the Amendatory Act at the time it went into effect in July 1995. It was in July 1995 that Mayor Richard M. Daley of Chicago first appointed his "School Reform Board of Trustees", the schools system's first Chief Executive Officer (Paul G. Vallas, who had been Daley's budget chief) and the President of the Board (attorney Gery Chico, who had been Daley's Chief of Staff). Although Substance has not covered all of the meetings of the Chicago Board of Education (and its predecessor under mayoral control, the so-called "School Reform Board of Trustees"), Substance has had a reporter or reporters at most meetings of the Chicago school board during those 14 years, and Substance has also tried to maintain copies of the agendas for all of the Board meetings during those years.

The Chicago Board of Education and its predecessor under mayoral control, the "Chicago School Reform Board of Trustees", met at least once a month during the years between July 1995 and July 2009. A total of at least 168 school board meetings were held during those months and years.

The Chicago Board of Education under mayoral control has always made it difficult for citizens to locate the Board's "Freedom of Information" facilities, despite the clear intent of the legislation, which requires that records be accessible and that public bodies provide citizens with assistance in locating and gaining access to public records.

In a statement regarding the Freedom of Information Act, Illinois Attorney General Lisa Madigan has been quite clear on the law and how it is supposed to operate:

“…it is declared to be the public policy of the State of Illinois that all persons are entitled to full and complete information regarding the affairs of government […] Such access is necessary to enable the people to fulfill their duties of discussing public issues fully and freely, making informed political judgments and monitoring government to ensure that it is being conducted in the public interest.” (5 ILCS 140/1)

"Illinois’ Freedom of Information Act is intended to open the government to all citizens by guaranteeing access to governmental records in whatever form they are maintained. The Act maintains a clear preference for access to public documents while still protecting legitimate governmental interests and the privacy rights of individual citizens. The Office of the Attorney General is committed to the free exchange of information and to that end publishes a Guide to the Freedom of Information Act intended to help Illinoisans navigate their way through the Act.

"The principal mandate of the Act is found in subsection 3(a), which provides that "[e]ach public body shall make available to any person for inspection or copying all public records." The remainder of the Act implements this requirement."

While there are clearly defined situations where records created at public expense are not covered by the Illinois Freedom of Information Act, the current situation in Chicago, which dates back years, does not seem to be one of them, although officials in Lisa Madigan's office has not supported citizens who have attempted to force the Chicago Board of Education into more transparency.

Can the record of closed sessions be maintained indefinitely in secrecy?

The Illinois Open Meetings Act, which functions in tandem with the Illinois Freedom of Information Act, provides for the closed sessions that are held during public meetings. This is to ensure that certain matters exempt from the Open Meetings Act be discussed. These include confidential personnel matters, litigation, real estate actions, and others. In general, the Chicago Board of Education goes into closed session within a few minutes after the end of Public Participation each month.

The Board, however, is required to maintain a precise record of what is said and done during closed session.

According to a memo from the Attorney General:

"... Separate notice is required, however, for all other closed meetings.

"Section 2a requires that the vote of each member on the question of holding a closed

meeting, as well as a citation to the exception in subsection 2(c) authorizing the closed meeting,

be publicly disclosed at the time of the vote and recorded and entered in the minutes of the

meeting at which the vote is taken. The public statement and citation should recite the language

of the exception and not a popular description. Discussion in a closed meeting is limited to

matters covered by the exception specified in the vote to close..."

In general, prior to the Board of Education's going into closed session, the precise language of the law as it applies to that closed session is read in the motion to go into closed session. The Board, however, does not have the right to maintain a secret record of its closed sessions. In fact, the law has been changed over the years to prevent just what Chicago appears to be doing in this case.

According to the Attorney General, the record of the meeting must be maintained, and it cannot remain secret forever:

"6. RECORDS OF MEETINGS

"Section 2.06 requires a public body to keep minutes of all open meetings. Minutes must

include, but need not be limited to: "(1) the date, time and place of the meeting; (2) the

members of the body recorded as present or absent; and (3) a summary of discussion on all

matters proposed, deliberated or decided, and a record of any votes taken. 5 ILCS 120/2.06(a).

This section formerly required that public bodies keep minutes of all closed meetings.

That requirement was deleted by Public Act 93-523, effective January 1, 2004, and was replaced

by the current requirement that public bodies "keep a verbatim record of all their closed meetings in the form of a video or audio recording." 5 ILCS 120/2.06(a). Effective January 1, 2005, however, the requirement that minutes be kept of all closed meetings, in addition to keeping a verbatim record of those meetings, will be reinstated by Public Act 93-974. The purpose of these provisions is twofold: (1) to ensure that public bodies keep accurate records of their proceedings for their own protection; and (2) to provide a record for a court to examine when it is trying to ascertain whether or not a violation of the Act has occurred.

"To comply with these requirements, a public body must enter into its minutes a summary

of all discussion held by the body on items brought before the meeting. The minutes must

include sufficient data so that either the body or a court examining its minutes will be able to

ascertain what, in fact, was discussed, the substance of that discussion, and what, if any, action

was taken. To comply with the verbatim recording provision, the public body must record the

entire closed meeting.

"With respect to closed meetings held during calendar year 2004, there are compelling

reasons for keeping minutes of those meetings despite the deletion of the statutory requirement.

"In order to address concerns that the making of a verbatim record would chill frank discussion,

section 2.06(e) provides: "Unless the public body has made a determination that the verbatim

recording no longer requires confidential treatment or otherwise consents to disclosure, the

verbatim record of a meeting closed to the public shall not be open for public inspection or

subject to discovery in any administrative proceeding other than one brought to enforce this Act."

5 ILCS 120/2.06(e).

" [Note: The clear intention of the General Assembly was to keep verbatim recordings confidential and unavailable for use in any type of proceeding other than one brought to enforce the Act. In accordance with this purpose, effective January 1, 2005, Public Act 93-974 will amend subsection 2.06(e) to provide that a recording is not "subject to discovery in any administrative or judicial proceeding other than one brought to enforce this Act." (Emphasis added.)] "In addition, subsection 2.06(c) provides that the verbatim record may be destroyed after

18 months without the necessity of approval from a records commission, "but only after: (1) the

public body approves destruction of a particular recording; and (2) the public body approves

minutes of the closed meeting that meet the written minutes requirements" applicable to open

meetings. 5 ILCS 120/2.06(c). "Thus, a public body will be required either to preserve its recordings of closed meetings held in 2004 in perpetuity or to create minutes of its closed meetings despite the lack of a specific requirement. Logic suggests that the simplest course is to take minutes at the time of the holding of a closed meeting which may then be substituted, in the judgement of the body, for the corresponding verbatim recordings when the statutory retention period concludes.

"Subsection 2.06(b) requires that minutes of open meetings be made available for public

inspection within seven days of approval of such minutes by the public body. Minutes of closed

meetings are available only after a determination by the public body that it is no longer necessary to protect the public interest or the privacy of an individual by keeping them confidential. ILCS 120/2.06(f). "Likewise, verbatim recordings of closed meetings can be disclosed to the public after the body determines that the recording no longer requires confidential treatment. 5ILCS 120/2.06(e). Minutes or verbatim recordings or portions thereof may also be made available by court order pursuant to the provisions of 5 ILCS 120/3(c), when it is determined that the meeting to which such minutes pertain was closed in violation of the Act. ..."

Final edited version of this article posted at www.substancenews.net July 20, 2009, 3:00 a.m. CDT. If you choose to reproduce this article in whole or in part, or any of the graphical material included with it, please give full credit to SubstanceNews as follows: Copyright © 2009 Substance, Inc., www.substancenews.net. Please provide Substance with a copy of any reproductions of this material and we will let you know our terms. We are asking all of our readers to either subscribe to the print edition of Substance (a bargain at $16 per year) or make a donation. Both options are available on the right side of our Home Page. For further information, feel free to call us at our office at 773-725-7502.



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