Opinion
5-22-0320 5-22-0321
06-15-2023
ROBERT DORMAN and DOUGLAS HULME, Plaintiffs-Appellants, v. MADISON COUNTY, an Illinois Municipal Corporation, Defendant-Appellee.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Madison County. Nos. 20-MR-575, 20-CH-196 Honorable Ronald J. Foster, Judge, presiding.
JUSTICE MOORE delivered the judgment of the court. Presiding Justice Boie and Justice McHaney concurred in the judgment.
ORDER
MOORE JUSTICE.
¶ 1 Held: The judgments of the circuit court are affirmed where the circuit court (1) did not err when it denied the plaintiffs' request for substitution of judge for cause because the plaintiffs failed to follow the requirements of 735 ILCS 5/2-1001(a)(3), (2) properly dismissed the plaintiffs' complaint seeking administrative review as the plaintiffs failed to follow the requirements of 735 ILCS 5/3-103, and (3) properly granted summary judgment finding that the Open Meetings Act was complied with for the meetings wherein the plaintiffs' employment was discussed and ultimately terminated.
¶ 2 In this consolidated appeal, the plaintiffs, Robert Dorman and Douglas Hulme, appeal the orders of the circuit court of Madison County (1) denying a motion to substitute judge pursuant to section 2-1001(a)(3) of the Code of Civil Procedure (Code) (735 ILCS 5/2-1001(a)(3) (West 2020)) on July 24, 2020, and September 29, 2020; (2) granting the defendant's section 2-619 motion (id. § 2-619) for involuntary dismissal of the plaintiffs' complaint in case No. 2020-CH-196 seeking administrative review of their termination on April 26, 2022; and (3) granting the defendant's motion for summary judgment finding that the Open Meetings Act was complied with and dismissing case No. 2020-MR-575 on April 26, 2022. For the following reasons, we affirm.
¶ 3 I. BACKGROUND
¶ 4 The plaintiff Douglas Hulme is a former employee of the defendant, Madison County, having previously served as county administrator. The plaintiff Robert Dorman is also a former employee of the defendant, having served as the former director of information technology. This case began with the filing of the two separate complaints by the plaintiffs in cases 2020-CH-196 and 2020-MR-575 based upon their employment termination by Madison County.
¶ 5 In January 2018, the state's attorney for Madison County convened a "Madison County Public Corruption Task Force" to investigate "allegations of probable official misconduct, possible bribery, and other potential charges." The Madison County state's attorney was ultimately removed and the Illinois Attorney General was appointed as the special prosecutor. Ultimately, the Illinois Attorney General determined in early 2020 that there was insufficient evidence to support charges against the plaintiffs.
¶ 6 On April 15, 2020, and April 16, 2020, the defendant held two meetings at which the employment of the plaintiffs was discussed. The meetings were conducted via teleconference due to the COVID-19 pandemic. The April 15, 2020, meeting was conducted pursuant to a published agenda that stated, "J. Executive Session: 1. Discuss Actions on Specific Personnel in accordance with IAW 5 ILCS 120/2(c)(1)." The April 16, 2020, meeting was also conducted pursuant to a published agenda and held via teleconference. The April 16, 2020, agenda indicated that there would be an opportunity for public comment, there would then be an executive session that would be a "[c]losed [s]ession for board members to discuss specific personnel in accordance with IAW 5 ILCS 120/2(c)(1)" and then there would be an open session wherein "[a]ction would be taken by the board on specific personnel." At the end of the April 16, 2020, meeting, during open session, two resolutions were passed by the defendant terminating the employment of the plaintiffs. The aye and nay roll call votes for both resolutions were taken and recorded, each with 25 ayes, one nay, and one abstention. The resolutions indicated that the plaintiffs' employment was terminated for "actions undertaken *** [which were] outside of the bounds of ethical conduct and standards that are expected for someone in [their] position[s] of leadership."
¶ 7 Following their employment termination, the plaintiffs filed a complaint against the defendant in 2020-CH-196 (administrative review case) on May 1, 2020, seeking administrative review of their employment termination pursuant to the Administrative Review Law (ARL) (735 ILCS 5/3-101 et seq. (West 2020)) and alleging the administrative decisions terminating their employment included insufficient factual findings and conclusions of law. The plaintiffs filed a complaint against the defendant in 2020-MR-575 (OMA case) on June 8, 2020, seeking civil enforcement of the Open Meetings Act (OMA) (5 ILCS 120/1 et seq. (West 2020)), alleging that the defendant violated the OMA during meetings held on April 15, 2020, and April 16, 2020. Specifically, they alleged that the defendant violated the OMA because the agendas for the defendant's April 15, 2020, and April 16, 2020, meetings did not specifically identify the resolutions related to the plaintiffs' termination of employment or mention them by name.
¶ 8 The administrative review case and OMA case were consolidated on March 18, 2022, before the circuit court. The plaintiffs filed multiple motions for substitution of judge, specifically requesting the appointment of an out-of-county judge. The circuit court granted one of the substitution of judge motions as a matter of right, but denied the plaintiffs' request for an out-ofcounty judge. The plaintiffs then filed additional motions again seeking an out-of-county judge, but those motions were denied following a hearing. The circuit court never referred any of the motions for substitution of judge out to a different judge for review prior to ruling upon them.
¶ 9 On June 15, 2020, the defendant moved to dismiss the administrative review case on the basis that the plaintiffs failed to exhaust their administrative remedies and thus were barred from bringing the lawsuit. On September 21, 2021, the defendant filed an amended motion to dismiss which further included an additional basis that the plaintiffs failed to comply with the statutory requirements of the ARL (735 ILCS 5/3-101 et seq. (West 2020)) pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 2020)). Specifically, the plaintiffs failed to have a summons issued to the defendant within the time required by statute. That same day, the defendant also moved for summary judgment in the OMA case on the basis that its actions and the discussions that took place on April 15, 2020, and April 16, 2020, in fact complied with the OMA.
¶ 10 After completion of briefing on these motions by the parties and hearing, the circuit court granted both the defendant's amended motion to dismiss and motion for summary judgment via separate orders dated April 26, 2022. This timely appeal followed. On May 26, 2022, in the interests of judicial economy, this court entered an order consolidating the appeals. Additional relevant facts will be incorporated below within the appropriate portions of our analysis.
¶ 11 II. ANALYSIS
¶ 12 On appeal the plaintiffs assert three different errors by the circuit court. First, that the circuit court erred when it denied their motions for substitution of judge, instead of having another judge review and rule on the motion. Second, that the circuit court improperly dismissed the plaintiffs' complaint in the administrative review case due to their failure to have a summons issued in compliance with the controlling statute. And third, that the circuit court erred when it granted summary judgment and found that the defendant complied with the OMA during the April 15, 2020, and April 16, 2020, meetings wherein the plaintiffs' employment was ultimately terminated.
¶ 13 We now turn to the first issue raised by the plaintiffs: whether the circuit court erred when it denied the plaintiffs' multiple motions for substitution ofjudge for cause and failed to refer those motions to an "out-of-county" judge for review. The plaintiffs argue that they raised multiple motions pursuant to sections 2-1001(a)(3)(ii) and (iii) of the Code (735 ILCS 5/2-1001(a)(3)(ii), (iii) (West 2020)), which allow substitution of a judge for cause, and which requires the motion be referred to another judge for review pursuant to that statute. The record demonstrates that the plaintiffs filed four motions or amended/supplemental motions for substitution of judge. The first was filed on June 30, 2020, and was brought pursuant to section 114-5 of the Code of Criminal Procedure of 1963 (725 ILCS 5/114-5 (West 2020)), a statute applicable to criminal procedure. On July 17, 2020, the plaintiffs filed an amended motion for substitution of judge which indicated it was being brought pursuant to section 3-101 of the ARL (735 ILCS 5/3-101 (West 2020)), which is applicable to administrative review law, not substitution of judges for cause in a civil matter. That motion was heard on July 24, 2020, by the Honorable Christopher Threlkeld. Following argument, Judge Threlkeld entered an order which indicated that the "case will proceed on Substitution of Judge as a Matter of Right in a civil case." The order further stated, "Parties agree to substitution ofjudge. Court allows motion only as to substitution of Christopher Threlkeld. Case to be sent to Chief Judge for any further action."
¶ 14 Following the substitution of judge as a matter of right, the case was reassigned to the Honorable Thomas Chapman. On August 2, 2020, the plaintiffs filed a supplemental motion for out-of-county judge again arguing that an out-of-county judge was necessary, inter alia, "due to the fact that a Madison County political body is involved in this case." The defendant filed its response, objecting to the motion. On September 4, 2020, the plaintiffs filed an "additional motion for out-of-county judge." Neither of the supplemental motions stated which statute they were being brought pursuant to and neither was verified nor had an attached affidavit. It appears based upon the plaintiffs' brief in this court, and the circuit court's docket sheet, that a hearing was held on the motions to substitute judge on September 29, 2020, and that Judge Chapman denied the motions. On October 15, 2020, the defendant filed a motion for substitution of judge as a matter of right pursuant to section 2-1001(a)(2) of the Code (735 ILCS 5/2-1001(a)(2) (West 2020)). That motion was granted by Judge Chapman and the Honorable Ronald J. Foster was assigned the case.
¶ 15 Subsection (a)(3) of the statute addresses a "petition for substitution of judge for cause" and provides in relevant part that "[e]very application for substitution of judge for cause shall be made by petition, setting forth the specific cause for substitution and praying a substitution of judge. The petition shall be verified by the affidavit of the applicant." (Emphasis added.) Id. § 2-1001(a)(3)(ii). The statute further states that "[u]pon the filing of a petition for substitution ofjudge for cause, a hearing to determine whether cause exists shall be conducted as soon as possible by a judge other than the judge named in the petition." Id. § 2-1001(a)(3)(iii). The plaintiffs argue that they alleged adequate cause in their petition and, thus, purport that they were entitled, following the filing of their motions, to have those motions assigned to a different judge for review. Therefore, they claim the circuit court's dismissing of those motions without referring them to other judges was error. We disagree.
¶ 16 First, the plaintiffs failed to ever cite or reference sections 2-1001(a)(3)(ii) or (iii) of the Code (id. § 2-1001(a)(3)(ii), (iii)) in any of the four motions filed with the circuit court. Instead, either different statutes were cited as a basis for the motion, or no statutes were cited. It is well settled that a plaintiff may not raise a new argument for the first time on appeal and that arguments not raised in the circuit court are considered forfeited. Robinson v. Toyota Motor Credit Corp., 201 Ill.2d 403, 413 (2002). Thus, it is unclear whether the issues raised on appeal were ever properly placed before the circuit court.
¶ 17 Regarding the first "denial" of the motions to substitute judge by Judge Threlkeld, we find that any issue with that order is waived. The order clearly states that it was being construed as a motion to substitute judge as of right and that the order was agreed to by the plaintiffs. Therefore, that order cannot now be challenged on appeal. See Centrue Bank v. Voga, 2020 IL App (2d) 190108, ¶ 29; see also In re Haber, 99 Ill.App.3d 306, 309 (1981).
¶ 18 As to the second denial, conducted by Judge Chapman, it is not directly evident from our review of the record how Judge Chapman construed those motions because the plaintiff has failed to include in the record on appeal any transcription of the hearing in which the motions were denied. However, this information is not necessary to our ultimate determination, as the plaintiffs' only contention on appeal is that Judge Chapman should have construed those motions as being brought pursuant to section 2-1001(a)(3) of the Code (735 ILCS 5/2-1001(a)(3) (West 2020)), which controls substitutions for cause. Subsection (a)(3) authorizes each party in a civil case to seek substitution of the circuit judge for cause and sets forth the requirements, as previously stated above, governing those requests. Our supreme court in In re Estate of Wilson, 238 Ill.2d 519, 553 (2010), has set forth the relevant case law controlling this situation:
"The courts of this state have held that the provisions of both statutes are to be liberally construed to promote rather than defeat the right of substitution, particularly where the 'cause' claimed by the petitioner is that the trial judge is prejudiced against him. [Citations.] The courts have also recognized, however, that a party's right to have a petition for substitution heard by another judge is not
automatic. [Citations.] Principles of liberal construction do not excuse the obligation of parties to adhere to express statutory requirements. [Citation.] Trial courts are required to refer a petition to another judge for a hearing on whether cause for substitution exists only if the party seeking that relief is able to bring himself or herself within the provisions of the law. [Citation.]
In order to trigger the right to a hearing before another judge on the question of whether substitution for cause is warranted in a civil case pursuant to section 2-1001(a)(3), the request must be made by petition, the petition must set forth the specific cause for substitution, and the petition must be verified by affidavit." (Emphasis added.)
¶ 19 Therefore, a "trial court may deny the petition if it (1) was not timely filed, (2) failed to include an affidavit, or (3) alleged bias not stemming from an extrajudicial source." Deutsche Bank National Trust Co. v. Nichols, 2013 IL App (1st) 120350, ¶ 8. Here, it is undisputed that none of the motions to substitute judge were verified or had an attached affidavit. Thus, the circuit court was not required to refer the motions to another judge for review as the motions failed to comply with the statute. Thus, we find that the circuit court's denial was not in error as the plaintiffs failed to properly invoke the statute.
¶ 20 The second issue raised by the plaintiffs is the circuit court's granting of the defendant's 2-619 motion to dismiss their administrative review case for failure to follow the statutory requirements. A section 2-619 motion to dismiss raises defects, defenses, or other affirmative matters that appear on the face of the complaint or are established by external submissions, and that act to defeat the plaintiff's claim. Neppl v. Murphy, 316 Ill.App.3d 581, 585 (2000). We review a circuit court's dismissal of an action pursuant to section 2-619 de novo. Maschek v. City of Chicago, 2015 IL App (1st) 150520, ¶ 38.
¶ 21 The law controlling a proceeding being brought pursuant to the ARL statute is well settled in Illinois. "The Illinois Constitution grants an appeal as a matter of right from all final judgments of the circuit court (Ill. Const. 1970, art. VI, § 6) but further provides that final administrative decisions are appealable only 'as provided by law' (Ill. Const. 1970, art. VI, § 9)." Beggs v. Board of Education of Murphysboro Community Unit School District No. 186, 2016 IL 120236, ¶ 45. "A circuit court's exercise of review over a final administrative decision is thus limited to the specific dictates of the [ARL]." Id. "In other words, a court exercises special statutory jurisdiction when it reviews a final administrative decision, and such jurisdiction is limited to the language of the statute conferring it and the court has no powers from any other source." Id. "Thus, whether dismissal of plaintiff's complaint was proper 'depends on whether plaintiff strictly complied with the requirements of the [ARL].'" Id. (quoting Ultsch v. Illinois Municipal Retirement Fund, 226 Ill.2d 169, 179 (2007)).
¶ 22 Section 3-102 of the ARL provides that a party to the proceeding before the administrative agency is barred from seeking judicial review of the administrative decision unless review is sought "within the time and in the manner" set forth in the ARL. 735 ILCS 5/3-102 (West 2020). Section 3-103 of the ARL requires as follows: "Every action to review a final administrative decision shall be commenced by the filing of a complaint and the issuance of summons within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected by the decision ***." (Emphasis added.) Id. § 3-103. The ARL also provides that the plaintiff "shall, by affidavit filed with the complaint, designate the last known address of each defendant upon whom service shall be made." Id. § 3-105.
¶ 23 Here, the plaintiffs filed their complaint in the administrative review case on May 1, 2020. There is no dispute that the plaintiffs filed their complaint within the time required under the ARL. Following the filing of the complaint, counsel for defendant and counsel for the plaintiffs had a conversation in which the defendant's counsel agreed to accept the complaint and service. On June 15, 2020, the attorney for the defendant entered his appearance and filed a motion to dismiss the plaintiffs' complaint pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 2020)). That motion to dismiss only raised the issue that the plaintiffs did not exhaust their administrative remedies under the personnel policies of Madison County and, therefore, could not seek administrative review in the circuit court. There was no allegation at that time of noncompliance with the statute's requirement that summons be issued within 35 days of the date that a copy of the decision sought to be reviewed was served upon the party.
¶ 24 Approximately a year and half later, on September 21, 2021, following minimal activity in the circuit court and settlement discussions between the parties, the defendant filed an amended 2619 motion to dismiss which added a claim that the plaintiffs failed to have a summons properly issued in accordance with the requirement of the ARL, and therefore, the plaintiffs were barred from bringing the case. On March 17, 2022, the plaintiffs filed their response to the motion to dismiss and sought leave from the circuit court to extend the time to issue summons for service on the defendant pursuant to Illinois Supreme Court Rule 183 (eff. Feb. 16, 2011) for "good cause," namely that the defendant's counsel had indicated acceptance of service and the COVID-19 pandemic had limited court access and resources. On April 26, 2022, the circuit court issued its order granting the defendant's amended motion to dismiss for failing to comply with section 3103 of the ARL (735 ILCS 5/3-103 (West 2020)) because no summons was issued by the circuit clerk on or before the deadline of June 1, 2020. The circuit court also denied the plaintiffs' motion to extend time under Illinois Supreme Court Rule 183 on the basis that the plaintiffs made no effort to have the summons issued.
¶ 25 The plaintiffs, on appeal, argue that the defendant, by accepting service, waived the statutory requirement or should be estopped from raising it as a means to defeat their action. We disagree. Illinois case law is very clear that the issuance of summons for ARL cases "is both mandatory and nonwaivable." Brazas v. Property Tax Appeal Board, 309 Ill.App.3d 520, 528 (1999); see also Palos Bank &Trust Co. v. Illinois Property Tax Appeal Board, 2015 IL App (1st) 143324, ¶¶ 12, 26; Burns v. Department of Employment Security, 342 Ill.App.3d 780, 786 (2003); Lacny v. Police Board of the City of Chicago, 291 Ill.App.3d 397, 402 (1997); Veazey v. Baker, 322 Ill.App.3d 599, 606 (2001). Thus, the defendant's acceptance of the complaint did not relieve the plaintiffs of their duty to comply with the ARL's requirements and have summons issued.
¶ 26 We do note that plaintiffs are correct that in certain cases the 35-day requirement has been relaxed where the plaintiffs made a good-faith effort to issue summons within the statutory period, but nevertheless, due to some circumstance beyond their control, summons was not issued within the statutory period. Lockett v. Chicago Police Board, 133 Ill.2d 349, 355 (1990), overruled on other grounds by Nudell v. Forest Preserve District of Cook County, 207 Ill.2d 409 (2003)). Here, the plaintiffs assert that the defendant's purported acceptance of service when combined with the COVID-19 pandemic is grounds for "good cause," especially since the defendant failed to raise the issue in its initial motion to dismiss. We disagree.
¶ 27 First, the plaintiffs do not allege any specific facts to support their claim that the COVID-19 pandemic prevented them from obtaining an issuance of a summons. The plaintiffs were able to file their complaint. This court sees no reason that the required affidavit could not have been filed at the same time and a summons issued had they attempted to do so.
¶ 28 Second, the plaintiffs did not exert any effort to have the summons issued. In cases where the courts have allowed a late issuance of summons, the plaintiffs attempted to issue a summons or at least filed an affidavit with the information required for the issuance of summons, but the summons was not issued through no fault of their own. That is not the case here. In this matter, the plaintiffs simply failed to issue the summons despite it being mandatory and nonwaivable, choosing instead to rely on the defendant's acceptance of service.
¶ 29 Finally, even assuming arguendo that the defendant's purported acceptance of service had tolled the time for issuing the summons or was grounds which warranted an extension for good cause, the plaintiffs failed to seek leave to issue the summons until six months following the filing of the defendant's motion to dismiss raising the issue. The plaintiffs cannot argue "good faith" when they failed to respond to the issue, or attempt to correct the issue, until nearly half a year after the issue was brought to their attention.
¶ 30 Additionally, we find Johnson v. Department of Public Aid, 251 Ill.App.3d 604 (1993), to be an analogous case and instructive:
"[In Johnson,] the plaintiff filed a timely complaint for administrative review, but the plaintiff failed to have summonses issued on the defendants until 177 days after the statutory deadline. The reviewing court noted that the procedure for the service of summons is mandatory and, in order to avoid dismissal in that case, the plaintiff had to demonstrate a good-faith effort to issue summonses within the 35-day period. The reviewing court determined that the plaintiff did not make a good-faith effort to issue summons according to the statutory provisions when he himself served copies of the complaint on the defendants by certified mail rather than by having them issued by the clerk of the circuit court within the statutory
period. See 735 ILCS 5/3-105 (West 1998). The court concluded that the plaintiff should not be allowed to create his own service procedure.
The plaintiff also argued in the Johnson case that the defendants waived their objection to jurisdiction by filing a motion to dismiss and making a general appearance in the matter. As in Lacny, the Johnson court rejected this argument. The court noted that the plaintiff's defense was not jurisdictional and that the defendants were not required to file a special and limited appearance and could raise the issue in a motion to dismiss at any time before responding to the merits of the complaint." Brazas, 309 Ill.App.3d at 527-28 (summarizing Johnson, 251 Ill.App.3d 604).
¶ 31 Therefore, for the foregoing reasons, we find the circuit court did not err when it granted the defendant's motion to dismiss the plaintiffs' administrative review case.
¶ 32 The final issue raised on appeal is that the circuit court erred in granting summary judgment in favor of the defendant in the plaintiffs' OMA case. Specifically, the plaintiffs argue (1) that the defendant violated the OMA in that "there were parts of the meetings *** that were not recorded as the various board members were texting each other and that was not part of the record," (2) that "the published agendas for the meeting were not sufficient," and (3) that the "Executive Order of Governor Pritzker allowing zoom meeting was not proper."
¶ 33 We first turn to the issues of alleged violations due to possible text messages not being recorded and the alleged impropriety of the executive order. It is well settled that a plaintiff may not raise a new argument for the first time on appeal and that arguments not raised in the circuit court are considered forfeited. Robinson v. Toyota Motor Credit Corp., 201 Ill.2d 403, 413 (2002). Here, neither of these arguments were properly presented to the circuit court. The plaintiffs' complaint is absent of any of these allegations, including facts and case law to support such allegations, and the plaintiffs' response to defendant's motion for summary judgment in its entirety reads as follows:
"Plaintiffs, by G. Edward Moorman, attorney, for their response to Defendant's Motion for Summary Judgment, states:
1. The Illinois courts do not favor a Summary Judgment, but instead favor a full hearing
2. In the instant case, there is a substantial issue as to relevant and material facts
3. Defendant's motion contains conclusions as to whether there was a quorum at the meeting in question and whether the letter of the law was complied with .. [ sic ]
4. Plaintiffs allege that the members of the board who cast votes at the meeting were not physically present at the meeting and therefore there was no quorum as defendant alleges.
5. One of plaintiff's [ sic ] allegations is that there was no compliance with the Open Meetings Act inthat [ sic ] there was no meeting because the members voting were not physically present. Defendant alleges otherwise, creating a factual issue precluding Summary Judgment. WHEREFORE, Defendant's Motion for Summary Judgment should be denied."
¶ 34 While some of the plaintiffs' vague and/or conclusory responses to the defendant's motion for summary judgment imply that there was not a quorum because members were not physically present, there are no specific allegations that the executive order entered by Governor Pritzker, and by which the defendant conducted its meeting, was improper or invalid. There is no case law cited to support such an assertion and the executive order at issue is never cited or mentioned directly. Again, there are no mentions of text messages or unrecorded conversations in the plaintiffs' pleadings in the circuit court. Therefore, because those issues were not properly raised and argued before the circuit court, they are forfeited and cannot be raised on appeal.
¶ 35 As for the remaining issue of whether the published agendas were sufficient to fulfill the obligations of notice under the OMA, we find that they were.
¶ 36 In appeals from summary judgment rulings, our standard of review is de novo. Brown &Brown, Inc. v. Mudron, 379 Ill.App.3d 724, 727 (2008). This court may affirm the circuit court's grant of summary judgment on any basis supported by the record. Id. Plaintiffs' central contention is that the agendas were not specific enough to give them notice that their employment was being discussed or that they were going to be terminated. Each meeting was conducted pursuant to a published agenda. The April 15, 2020, meeting informed the public that the defendant would conduct a closed executive session to "Discuss Actions on Specific Personnel in accordance with IAW 5 ILCS 120/2(c)(1)."
¶ 37 The April 16, 2020, meeting was also conducted pursuant to a published agenda. Like the April 15 agenda, the April 16 agenda informed the public the defendant would conduct a closed executive session "for board members to discuss specific personnel in accordance with IAW 5 ILCS 120/2(c)(1)." The agenda further advised the public that after the closed executive session, an open session would be held for "[a]ction to be taken by the board on specific personnel."
¶ 38 The minutes of the meetings were recorded, including the closed executive session. During the April 15, 2020, meeting, the defendant voted on the record to enter executive session to discuss the employment of specific personnel in accordance with the agenda. During the April 16, 2020, meeting, the defendant, again, voted on the record to enter executive session to discuss its actions on specific personnel in accordance with the agenda. After discussion of the termination of each plaintiff, the defendant moved to open session. During the open session, the defendant voted on two resolutions: one terminating the employment of Plaintiff Dorman, and one terminating the employment of Plaintiff Hulme. The aye and nay roll call votes for both resolutions were taken and recorded, each with 25 ayes, one nay, and one abstention. Each resolution provided that plaintiffs were being terminated for "actions undertaken.. .[which were] outside the bounds of ethical conduct and standards that are expected for someone in [their] position[s] of leadership."
¶ 39 After a detailed review of the record, we find that these actions properly complied with the OMA for the same reasons as articulated by the circuit court in its detailed and well written order recited here:
"ORDER
Case called on Defendant's, Madison County, an Illinois Municipal Corporation, Motion for Summary Judgment. Parties appear by and through their respective counsel and arguments heard. The Court, after reviewing the pleadings, hearing arguments and being fully advised in the premises, Finds as follows:
Plaintiffs['] pending motion is for summary judgment. Summary judgment is only appropriate where the pleadings, depositions, admissions, and affidavits demonstrate that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. 735 ILCS 5/2-1005(c). In determining whether a genuine issue of material facts exists, the court construes the pleadings, depositions, admissions, and affidavits strictly against the movant and liberally in
favor of the opposing party. Adams v. Northern Illinois Gas Co., 211 Ill.2d 32, 43 (Ill. 2004).
In the present case, the Plaintiffs allege Defendant's actions on April 15, 2020 and April, 16, 2020 violated the Open Meetings Act. The Court will first address the allegations as to the April 15, 2020 meeting. The April 15, 2020 agenda, attached as Exhibit A to Defendant's Motion for Summary Judgment, states that during Executive Session, the Board will discuss actions on specific personnel in accordance with 5 ILCS 120/2(c)(1).
5 ILCS 120/2(c)(1) states a public body may hold closed meetings to consider '[t]he appointment, employment, compensation, discipline, performance, or dismissal of specific employees,' (emphasis added). 5 ILCS 120/2.02 requires public notice of open and closed meetings. 5 ILCS 120/2a allows a public body to hold closed session meetings upon a majority vote of a quorum present taken at a public meeting to go into closed session. 5 ILCS l 20/2a specifically states: '[t]he 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.'
In the case at bar, the Defendant complied with the Open Meetings Act by including in its agenda that the Board would go into Executive Session to' [d]iscuss [a]ctions on [s]pecific [p]ersonnel in accordance with IAW 5 ILCS 120/2(c)(1).' See Exhibit A attached to Defendant's Motion for Summary Judgment. Therefore, appropriate notice of the issues to be discussed in executive session was provided
when the Defendant's agenda informed the public at large that specific personnel would be discussed in executive session pursuant to 5 ILCS 120/2(c)(1). Moreover, the Defendant complied with the procedural requirements to go into closed session by taking a vote while in open session 'to enter into [e]xecutive [s]ession to discuss actions on specific personnel in accordance with IAW 5 ILCS 120/2(c)(1).' See Exhibit B, p. 58 attached to Defendant's Motion for Summary Judgment. The vote was 28 ayes and 0 nays in favor of moving into executive session. See Exhibit B, p. 58 attached to Defendant's Motion for Summary Judgment. It is undisputed the Defendant did not take final action against the Plaintiffs on April 15, 2020, either in open session or closed session.
The April 16, 2020 meeting was a Special Meeting, which had the following agenda for the executive session: 'Closed Session for board members to discuss specific personnel in accordance with IAW 5 ILCS 120/2(c)(1).' Further, the Defendant had the following agenda for the open session: "Action to be taken by the board on specific personnel." See Exhibit C attached to Defendant's Motion for Summary Judgment. 5 ILCS 120/2.02(a) states:
Public notice of any special meeting except a meeting held in the event of a bonafide emergency, or of any rescheduled regular meeting, or of any reconvened meeting, shall be given at least 48 hours before such meeting, which notice shall also include the agenda for the special, rescheduled, or reconvened meeting, but the validity of any action taken by the public body which is germane to a subject on the agenda shall not be affected by other errors or omissions in the agenda.
In re Foxfield Subdivision, 396 Ill.App.3d 989, 996 (2nd Dist. 2009) noted that 'germane' is defined as 'in close relationship, appropriate, relevant, pertinent.' The Foxfield court held the following:
Our Open Meetings Act does not require that an agenda be specifically detailed or that it be tailored to reach those specific individuals whose private interests are most likely to be affected by the actions of the public body. It requires only that the action taken at a special meeting be germane to the agenda listed in the notice. Id. at 997.
In the case at bar, the Plaintiffs['] termination was germane to the agenda item of 'action to be taken by the board on specific personnel.' Similar to Foxfield, the notice sufficiently informed the public of the action to be taken by the Board at the April 16, 2020 Special Meeting and Defendant's decision did not violate the Open Meetings Act.
The notice for the April 15th and 16th meeting stated, 'The County Board meeting will be conducted via telephone due to COVID-19 restrictions.' See Exhibit A and Exhibit C attached to Defendant's Motion for Summary Judgment. This meeting occurred during the height of the COVID pandemic. The Governor issued an Executive Order 2020-07 on March 16, 2020, which under Section 6 stated:
[T]he provisions of the Open Meetings Act, 5 ILCS 120, requiring or relating to in-person attendance by members of a public body are suspended. Specifically, (1) the requirement in 5 ILCS 120/2.01 that 'members' of a 'public body must be physically present' is suspended; and
(2) the conditions in 5 ILCS 120/7 limiting when remote participation is permitted are suspended.
The Defendant's action were in conformity with the aforesaid Executive Order. Plaintiffs cite no law supporting their assertion that the Governor may have lacked the authority to issue the Executive Order. Further, Plaintiffs do not request in their pleadings for this Court to make a determination as to the lawfulness of the Governor's Executive Order.
IT IS THEREFORE ORDERED, Plaintiffs have failed to raise a genuine issue of material fact to defeat Defendant's Motion for Summary Judgment; consequently, Defendant's Motion for Summary Judgment is GRANTED."
¶ 40 We find the circuit court's analysis to be accurate and proper. The descriptions listed in both agendas were sufficient in that they indicated that the defendant would be discussing the employment of specific personnel. Those agendas further indicated that this was being done pursuant to the OMA provision, section 2(c)(1), which allows for closed meetings to occur for the purpose "to consider *** discipline, performance, or dismissal of specific employees." 5 ILCS 120/2(c)(1) (West 2020). The record evidences that the closed sessions on both dates were entered into in compliance with the OMA. Moreover, the actual termination of the plaintiffs was done in open session as required under the OMA.
¶ 41 We also agree that the case of In re Foxfield Subdivision, 396 Ill.App.3d 989, 996 (2009), is instructive and that the court in Foxfield held that "germane" is defined as "in close relationship, appropriate, relevant, pertinent." (Internal quotation marks omitted.) Here, we find that the action of termination of the plaintiffs was germane, or relevant or pertinent, to the agenda listed in the notice. Thus, we do not find that there was any failure on the part of the defendant to comply with the OMA.
¶ 42 Plaintiffs have failed to cite any law that specifically requires that a county board state the names of the specific individuals it plans to discuss, discipline, or terminate in the agenda and this court is aware of none. In fact, the plaintiffs failed to cite any law whatsoever in response to the defendant's motion for summary judgment, choosing instead only to respond with five conclusory allegations/general statements instead of articulating more detailed support for their position.
¶ 43 Therefore, for the foregoing reasons, we find the circuit court did not err in granting summary judgment in favor of the defendant as to the OMA case.
¶ 44 III. CONCLUSION
¶ 45 For the foregoing reasons, the July 24, 2020, and September 29, 2020, orders of the circuit court of Madison County regarding the plaintiffs' motions to substitute judge and the April 26, 2022, orders dismissing the plaintiffs' two lawsuits are affirmed.
¶ 46 Affirmed.