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A resolution establishing a procedure for how and when Board members may share email or written communications from the Superintendent or Board President passed 5-2 at the Dec. 11 District 202 School Board meeting despite the possibility of a legal challenge from the ACLU. 

Citing Board members’ oath of office, Code of Conduct, and Board Agreements, the Resolution states that “when the superintendent or Board president communicates district information exclusively to the Board and/or other School District administrators in an email or other written communication, Board members shall … 1) Assume the communication is confidential unless it states otherwise; and 2) Maintain the confidentiality of the communication unless (t)he author of the communication grants consent to the Board member to share the communication with a specific third party; or [e]xtraordinary circumstances exist, and the Board member reasonably believes that there is a legal obligation or it is in the best interest of the School District to share the communication with a third party and the author is unlikely to consent to release of the communication. In such a case, the Board member shall, unless legally prohibited, first seek guidance and/or inform the Board president, superintendent, or Board attorney prior to sharing the communication with a third party.”

The Resolution was crafted in response to what was called by Board President Pat Savage-Williams a “breach of confidentiality” on the part of Board member Jonathan Baum who forwarded an email sent by Dr. Witherspoon relating to the confiscation of the ETHS student newspaper The Evanstonian. This issue was reported on in the Nov. 16 issue of the RoundTable.

Possibly Unconstitutional

Mr. Baum, who, along with Gretchen Livingston voted no on the Resolution, labeled it a “gag rule,” arguing it is an “unconstitutional prior restraint on Board members’ freedom of speech in violation of the First Amendment.” The Resolution also “reverses the presumption in the Open Meetings Act and the Freedom Of Information Act (FOIA),” which says communication among members of a public body is “presumptively public and can only be shielded from public scrutiny if it falls within certain narrow expectations,” said Mr. Baum. He criticized the resolution’s vague language saying it lacked criteria for making determinations about what constitutes “confidential,” “extraordinary circumstance,” and what “reasonably believed” means in the Resolution.

“Members of a public body cannot simply agree among themselves to conceal from members of the public communications the body has no legal right to withhold from them,” said Mr. Baum.

Before urging his colleagues to vote no on the resolution, he informed them that he had already been in contact with the Illinois ACLU who had authorized him to say they “expressed interest in looking at a possible legal challenge” if the Resolution passes. 

Board member Gretchen Livingston told the Board she “firmly” opposed the resolution because it “subverts the valuable contribution to public policy represented by the Illinois FOIA and it has no place in a community like ours that values free and open exchange within its public bodies.”

Quoting the FOIA statute, she said that “all persons are entitled to full and complete information regarding the affairs of …public officials…which promotes the transparency and accountability of public bodies.”  Adding what she called, “the critical language,” the FOIA says “all records in the custody or possession of a public body are presumed to be open to inspection or copying.  Any public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt.”

Ms. Livingston, an attorney and immediate past president of the school board, referenced Attorney General’s opinions in two FOIA cases where “the state law presumption of openness controlled.” She said the FOIA and Open Meetings Act make it clear elected officials may not conduct business of the public in private and therefore no member should be communicating about matters that they would not like to see made public. No reason or justification was given for why only the Board President’s communications were given special privilege, she said, concluding that never in her nine years with the Board had she “encountered a more dangerous attempt to undermine the public trust than in this proposed Resolution.”

The Resolution is Intended to be a Protocol

Superintendent Eric Witherspoon told the Board that the Resolution had been reviewed by legal counsel who stated it did not violate FOIA since any communication could still be requested under that Act. Rather, he said, it outlines a protocol. “When emailing another person there is an expectation of confidentiality and the sender should be consulted if shared.” 

“We all know why we’re here,” said Board member Mark Metz. “There was an intervention by a Board member into a personnel issue that was felt to violate the code of conduct. We have to reaffirm some level of confidence between Board members. Don’t read we are trying to hide anything. It’s not this complicated.”

Board Member Pat Munsell said the issue is about allowing for a discussion, practical things. Emails could turn into legal issues. The resolution allows for information to be exchanged and dialogue to happen. “Confidentiality is initially important before we know what (the issue) is. It’s a matter of our ability to work together within the bounds of law and being transparent.”  

The Resolution is about “how we communicate as a Board with integrity, it’s that simple,” said Monique Parsons. “To say it is not being transparent to the community is not truthful. This is about Board dynamics and holding each other accountable. In its essences is what we all have already agreed to do.”

Other Issues Raised

Aside from discussion on the appropriateness of the Resolution, comments also revealed frustration with the steps leading to its creation.

Ms. Livingston said she wished the whole issue had been discussed at a scheduled Board evaluation session held Nov. 4 where there was a facilitator who could have helped them move forward. Instead, she said, Ms. Savage-Williams – who found out about the issue on Nov. 1 – decided to hold the information for a later discussion.

Ms. Livingston also questioned why the Resolution was not first presented at the Board meeting for discussion instead of for action which she said was “contrary to how we act.”

Mr. Baum accused Ms. Savage-Williams of not being “transparent” in how she handled previous correspondence from Dr. Witherspoon on the confiscation issue. Ms. Savage-Williams responded that it was “inappropriate” for Mr. Baum to make decisions independently about releasing information to the public, that as a Board member that was not his role.

ACLU Challenge

Board members disagreed about whether a legal challenge to the Resolution by the ACLU would be a good thing.

Ms. Livingston said she would embrace the ACLU looking into the Resolution if it passed.

The Resolution is an attempt to remedy the actions of another Board member, but now it’s become a First Amendment issue, said Mr. Metz.  “If there’s another way to resolve this I’m for it. I have no interest in a lawsuit from ACLU.  Let’s not blow this up.”

Ms. Parsons said she was “disappointed” that those against the Resolution offered no alternative. “We said we need to reaffirm how we communicate. No one brought ideas to the table. If you want to threaten lawsuits, we are not acting on what’s best for the District.” 

“It is not my obligation to craft a new agreement when the old ones were fine,” said Ms. Livingston suggesting the vote be put off until there was more discussion. 

Ms. Savage-Williams called for the vote, which passed.

In wrapping up the discussion, Dr. Witherspoon said the District will not violate FOIA but will examine each request as is currently done. “We will be 100% faithful to transparency.  This is not a way to circumvent the law. We will not do that.”

Ms. Livingston said she wants to see the legal opinion from the District’s counsel shared with Board and public. “And we’ll see what the ACLU says as well.”