Elmhurst D-205 Secret Discussion May Be Revealed

ELMHURST, IL — The Elmhurst school board is under pressure from the attorney general to release the recording of a 2019 closed meeting on the school district's dealings with the city.

Last month, the attorney general found the board violated the state's open meetings law by taking its discussion about an agreement with the city behind closed doors on April 23, 2019.

On Tuesday, the board for Elmhurst School District 205 is set to vote on whether to publicly release the recording of the meeting. It's possible the board will discuss the issue in a closed session earlier in the meeting.

The recording issue is on the board's "consent agenda," meaning it is set to be voted on as part of a package of items. This would allow the board to approve the release of the recording without publicly addressing the attorney general's finding.

This is the second time since 2018 that the attorney general has found that the board closed its doors in violation of state law. Both times, the issues were brought to the state's attention by watchdog Edgar Pal, who has since moved to Chicago.

The first time, the board's eventual release of the recording revealed a spirited discussion behind closed doors on an administrative reorganization. In public, the board voted for the proposed measure, with two members dissenting but saying nothing.

In 2019, then-Elmhurst resident Edgar Pal submitted a complaint to the attorney general about the April 2019 closed meeting. The session was about the district's negotiations with the city of Elmhurst for an intergovernmental agreement.

At the time, the district claimed the city owed millions in connection with the city's tax increment financing districts. The city and district were also negotiating over stormwater projects.

After the closed meeting, Caforio said the district would explore avenues other than continued negotiations with the city to recoup the money that the board believed it was owed.

In Illinois, public bodies are allowed to close their doors to discuss pending, probable or imminent litigation. But the board's recording did not include the required finding of probable or imminent litigation, the attorney general said.

In defense, the board's attorney said the finding of probable or imminent litigation was "cryptically made by reference to the prior threats to sue the city." And the lawyer said Caforio's statement after the closed meeting was a "politically polite way of stating that the Board would litigate its claims against the City with respect to the TIF issues."

However, the attorney general said the board did not reach the legal threshold to close its meeting.

"A threat of litigation at some point in the future is insufficient to demonstrate that litigation is in fact probable or imminent under the circumstances," the attorney general's office said.

The board's attorney also said the law allowed closed discussions about the possible lease or sale of real estate. As part of the intergovernmental agreement, the district was considering transferring easements to the city.

However, the attorney general said the board did not discuss the valuation of real estate or a price the district would offer or accept behind closed doors. Only a small portion of the meeting in which the board discussed the purchase or lease of real estate was properly behind closed doors, according to the attorney general.

The rest, however, should be released, the attorney general said.

This is Pal's second victory over the school board on open meeting issues. In December 2019, a judge approved a settlement between Pal and the district over a June 2018 closed meeting in which the board discussed an administrative reorganization plan.

In that case, the attorney general found in 2018 the district violated the state's open meetings law by holding the closed session. The attorney general recommended the district release its recording, but the district declined. So Pal sued. In the settlement, the board decided to release the recording in question and cover Pal's legal bills, which amounted to about $4,000.

The board is allowed to discuss specific employees in a closed meeting, but not general personnel issues.