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686 N.E.2d 1222 / Page XXX
292 Ill.App.3d 968, 686 N.E.2d 1222, 227 Ill.Dec. 66, 122 Ed. Law Rep. 752
(Cite as: 292 Ill.App.3d 968, 686 N.E.2d 1222, 227 Ill.Dec. 66)

Appellate Court of Illinois,

Fourth District.

The BOARD OF REGENTS OF THE REGENCY UNIVERSITY SYSTEM, Plaintiff–Appellant,

Charles G. REYNARD, in his official capacity as State's Attorney for McLean County, Defendant–Appellee (The People of the State of Illinois, ex rel. Charles G. Reynard, State's Attorney for the County of McLean, McLean County, Illinois, Counterplaintiff–Appellee and Cross–Appellant, v. The Board of Regents, a body corporate and politic for and on behalf of Illinois State University, Counterdefendant–Appellant and Cross–Appellee).

No. 4–96–0718.

Argued May 14, 1997.

Decided Nov. 6, 1997.

Board of Regents sought declaration that Open Meetings Act does not apply to the Athletic Council of Illinois State University (ISU), and state's attorney filed countercomplaint. The Circuit Court, McLean County, Ronald C. Dozier, J., held that Council was public body subject to the Act, but denied requested relief, and appeal and cross–appeal were taken. The Appellate Court, Garman, J., held that: (1) body determined to be public may be not be exempted from the requirements of the Open Meetings Act or the Freedom of Information Act (FOIA) simply because it may be a burden to comply, and thus balancing test will not be applied; (2) Council is a “public body” for purposes of both acts; (3) state's attorney was not entitled to requested relief of declaring void discussions of Council at meeting held in violation of Act and recommendation by Council to eliminate certain athletic programs, but court should have issued injunction against future violations by the Council; and (4) Council failed to follow the necessary procedures to invoke the litigation exception under the Open Meetings Act.

Affirmed and remanded.

West Headnotes

[1] Declaratory Judgment 118A 5.1

118A Declaratory Judgment

118AI Nature and Grounds in General

118AI(A) In General

118Ak5 Discretion of Court

118Ak5.1 k. In general. Most Cited Cases

Declaratory Judgment 118A 394

118A Declaratory Judgment

118AIII Proceedings

118AIII(H) Appeal and Error

118Ak392 Appeal and Error

118Ak394 k. Discretion of lower court. Most Cited Cases

Decision of trial court to grant or deny declaratory relief is within its sound discretion and will not be disturbed on review absent an abuse of that discretion.

[2] Administrative Law and Procedure 15A 124

15A Administrative Law and Procedure

15AII Administrative Agencies, Officers and Agents

15Ak124 k. Meetings in general. Most Cited Cases

Records 326 51

326 Records

326II Public Access

326II(B) General Statutory Disclosure Requirements

326k51 k. Agencies or custodians affected. Most Cited Cases

Body determined to be public may be not be exempted from the requirements of the Open Meetings Act or the Freedom of Information Act (FOIA) simply because it may be a burden to comply, and thus balancing test that weighs the policy of openness in both statutes against the burden imposed by forcing the body to comply with their requirements will not be utilized. S.H.A. 5 ILCS 120/1 et seq., 140/1 et seq.

[3] Education 141E 1016

141E Education

141EVI Colleges and Universities

141EVI(B) Governance and Boards

141Ek1012 Governing Boards

141Ek1016 k. Meetings. Most Cited Cases

(Formerly 81k7 Colleges and Universities)

Records 326 51

326 Records

326II Public Access

326II(B) General Statutory Disclosure Requirements

326k51 k. Agencies or custodians affected. Most Cited Cases

Athletic Council of Illinois State University (ISU)is a “public body” for purposes of the Open Meetings Act and Freedom of Information Act (FOIA); Council is part of the formal organizational structure of ISU and was created by the Academic Senate, its duties and responsibilities are set forth in the Senate supplement, those responsibilities are broad, and the Senate is a “subsidiary public body”, as a creature of the Board of Regents, which is a public body. S.H.A. 5 ILCS 120/1.02, 140/2.

[4] Administrative Law and Procedure 15A 124

15A Administrative Law and Procedure

15AII Administrative Agencies, Officers and Agents

15Ak124 k. Meetings in general. Most Cited Cases

Records 326 51

326 Records

326II Public Access

326II(B) General Statutory Disclosure Requirements

326k51 k. Agencies or custodians affected. Most Cited Cases

That entity is an advisory body does not exempt it from application of the Open Meetings Act and the Freedom of Information Act (FOIA). S.H.A. 5 ILCS 120/1.02, 140/2.

[5] Administrative Law and Procedure 15A 124

15A Administrative Law and Procedure

15AII Administrative Agencies, Officers and Agents

15Ak124 k. Meetings in general. Most Cited Cases

Records 326 51

326 Records

326II Public Access

326II(B) General Statutory Disclosure Requirements

326k51 k. Agencies or custodians affected. Most Cited Cases

Inclusion within definition of public body in the Open Meetings Act and Freedom of Information Act (FOIA) depends primarily upon organizational structure. S.H.A. 5 ILCS 120/1.02, 140/2.

[6] Administrative Law and Procedure 15A 124

15A Administrative Law and Procedure

15AII Administrative Agencies, Officers and Agents

15Ak124 k. Meetings in general. Most Cited Cases

Records 326 51

326 Records

326II Public Access

326II(B) General Statutory Disclosure Requirements

326k51 k. Agencies or custodians affected. Most Cited Cases

Under the Open Meetings Act and Freedom of Information Act (FOIA), a subsidiary public body is itself a public body for purposes of complying with the requirements of both statutes. S.H.A. 5 ILCS 120/1.02, 140/2.

[7] Declaratory Judgment 118A 201

118A Declaratory Judgment

118AII Subjects of Declaratory Relief

118AII(K) Public Officers and Agencies

118Ak201 k. Officers and official acts in general. Most Cited Cases

Injunction 212 1246

212 Injunction

212IV Particular Subjects of Relief

212IV(E) Governments, Laws, and Regulations in General

212k1246 k. Injunctions against government entities in general. Most Cited Cases

(Formerly 212k85(1))

Mandamus 250 81

250 Mandamus

250II Subjects and Purposes of Relief

250II(B) Acts and Proceedings of Public Officers and Boards and Municipalities

250k81 k. Meetings and proceedings of boards or other bodies. Most Cited Cases

Relief under the Open Meetings Act includes granting mandamus relief requiring that a meeting be open to the public, granting an injunction against future violations of the Act, ordering the public body to make available to the public minutes of a closed meeting or declaring null and void any final action taken at a closed meeting. S.H.A. 5 ILCS 120/3(c).

[8] Declaratory Judgment 118A 210

118A Declaratory Judgment

118AII Subjects of Declaratory Relief

118AII(K) Public Officers and Agencies

118Ak210 k. Education. Most Cited Cases

Injunction 212 1246

212 Injunction

212IV Particular Subjects of Relief

212IV(E) Governments, Laws, and Regulations in General

212k1246 k. Injunctions against government entities in general. Most Cited Cases

(Formerly 212k85(1))

Plaintiff in action under Open Meetings Act was not entitled to requested relief of declaring void discussions of Athletic Council of Illinois State University (ISU) at meeting held in violation of Act and recommendation by Council to eliminate certain athletic programs, since it did not appear how mere discussions can be declared null and void, recommendation was only advisory, and all the coaches and athletes in the eliminated programs were gone; however, court should have issued injunction against future violations by the Council. S.H.A. 5 ILCS 120/3(c).

[9] Administrative Law and Procedure 15A 124

15A Administrative Law and Procedure

15AII Administrative Agencies, Officers and Agents

15Ak124 k. Meetings in general. Most Cited Cases

If relief for a violation of the Open Meetings Act can be obtained, it should be granted once the violation is found to have occurred. S.H.A. 5 ILCS 120/3(c).

[10] Education 141E 1016

141E Education

141EVI Colleges and Universities

141EVI(B) Governance and Boards

141Ek1012 Governing Boards

141Ek1016 k. Meetings. Most Cited Cases

(Formerly 81k7 Colleges and Universities)

Injunction 212 1324

212 Injunction

212IV Particular Subjects of Relief

212IV(I) Education

212k1322 Post-Secondary Education

212k1324 k. Governing bodies and officials. Most Cited Cases

(Formerly 81k7 Colleges and Universities)

Athletic Council of Illinois State University (ISU) failed to follow the necessary procedures to invoke the litigation exception under the Open Meetings Act where there was no finding of probable or imminent litigation and no vote to go into executive session, and proper remedy was injunction against future violations. S.H.A. 5 ILCS 120/2(c)(11), 2a, 2.06(a).

**1223 ***67 *969 Carol Hansen Posegate, Gregory K. Harris (argued), David O. Edwards, Giffin, Winning, Cohen & Bodewes, P.C., Springfield, for Board of Regents.

R. Brian Hug, Asst. State's Atty. (argued), Law & Justice Center, Bloomington, for Charles G. Reynard, State's Atty.

*970 Donald W. Anderson, Burditt & Radzius, Chartered, Chicago, for amicus curiae Illinois Wrestling Federation.

Justice GARMAN delivered the opinion of the court:

This case arises under the Open Meetings Act (Act) (5 ILCS 120/1 et seq. (West 1994)) and the Freedom of Information Act (FOIA) ***68 **1224 ( 5 ILCS 140/1 et seq. (West 1994)). The Board of Regents of the Regency University System (Board) filed a complaint for declaratory judgment against defendant Charles G. Reynard in his official capacity as McLean County State's Attorney (Reynard), asking for a determination that the Act did not apply to the Athletic Council (Council) of Illinois State University (ISU). After an investigation, Reynard had previously told the Board that the Act did apply to meetings of the Council, and he had threatened criminal prosecution for violating the Act. The Council had held meetings on March 22 and April 26, 1995, regarding the elimination of the men's wrestling and soccer programs at ISU.

In the course of the investigation, the Board had turned over to Reynard minutes and a transcript of the March 22, 1995, meeting of the Council. After the Peoria Journal Star made a request under the FOIA to Reynard for those documents, the Board filed a motion for preliminary injunction, seeking to prohibit Reynard from releasing the documents until the declaratory judgment action was decided. Reynard filed a countercomplaint against the Board for declaratory judgment and injunctive relief, seeking a determination that the Act applies to the Council, an injunction against further violations of the Act by the Council and an order requiring the Council to make minutes of the closed meetings available to the public. Reynard alleged that the Council improperly went into closed session during meetings held in April 1995, failed to vote to go into closed session, and failed to keep minutes of the meetings in violation of the Act. The countercomplaint asked that all matters discussed during the closed portion of the meetings and voted on during the open portion of the meetings be declared null and void.

Subsequently, Twin–Cities Broadcasting Corporation, WJBC–WBNQ Radio (Twin–Cities), filed a similar request under the FOIA that was denied, and it sought injunctive relief to prevent withholding of documents by Reynard. The trial court denied a motion by Twin–Cities for judgment on the pleadings and granted the Board's request for injunction. Twin–Cities appealed the court's decision in its case, and this court handed down its decision affirming the trial court's judgment in Twin–Cities Broadcasting Corp. v. Reynard, 277 Ill.App.3d 777, 214 Ill.Dec. 547, 661 N.E.2d 401 (1996).

*971 Reynard appealed the trial court's decision granting the Board's request for injunctive relief. In Board of Regents of the Regency University System v. Reynard, No. 4–96–0159 (August 7, 1996) (unpublished order under Supreme Court Rule 23), this court dismissed the appeal as moot because of the Board's action in voluntarily turning over to Twin Cities the minutes of the March 22, 1995, meeting of the Council.

The Board filed an amended complaint in which it additionally asked for a declaratory judgment that the FOIA does not apply to records of the Council.

A bench trial on the merits was held on June 5 and 12, 1996. Ira Cohen, ISU professor of history and current parliamentarian of the Academic Senate (Senate), testified as to the governing structure of ISU and the role of the Council. The Illinois General Assembly created the Board. The Senate, which is the primary body determining educational policy at ISU, reports to the president who, in turn, reports to the Board. Internal committees of the Senate are composed only of Senate members. External committees are composed of people who are not on the Senate. Under Senate bylaws, the role of Senate committees is to make reports and recommendations to the Senate. The bylaws of the Council provide that it is an external, standing committee of the Senate. It is to report to the student affairs committee. In reality, it serves as an advisory body to the athletic director, with primary advisory responsibility to the president. It gives advice on the development of budgets and policies governing the intercollegiate athletic program. The Council consists of voting and nonvoting members. The voting faculty members are elected by the Senate for staggered three-year terms, the four voting student members are elected by the Senate for one-year terms, and the two voting alumni members are selected by the board of directors of the ISU alumni association. The nonvoting Council members are the athletic **1225 ***69 director, associate athletic director, two coaches, and the president's administrative designee. Members of the Council cannot be removed except for absences.

Cohen testified that the Board and the president normally follow the recommendations of the Senate, but they are not required to do so. The Council gives the president advice concerning National Collegiate Athletic Association (NCAA) regulations. There are over 300 standing committees at ISU; in Cohen's opinion, compliance with the Act would be a “nightmare” for all these committees.

Richard Greenspan, ISU athletic director, testified that he reports to the president. The recommendations of the Council are not binding on him or the president. The Council is an advisory body providing*972 advice and feedback to the president and athletic director on athletic issues. Greenspan uses the Council as a sounding board. He is free to reject its advice and there have been occasions when he has done so. The Council deals only with internal ISU matters, it has no budget, and none of its members are paid. In 1993, a subcommittee of the Council developed a “Gender Equity Plan” (Equity Plan) in connection with ISU's need to comply with NCAA requirements on gender equity. The Council considered the Equity Plan in 1993 and, in 1995, also considered the “Gender Equity Management Plan” (Management Plan). The Management Plan first went to the president and, subsequently, the Council was asked for its recommendation. After the Council recommended its adoption, the Management Plan was adopted. As a result, men's soccer and wrestling were eliminated and women's soccer was added.