Madison - St. Clair Record

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Dugan upholds MESD board vote to terminate 10 employees in Open Meetings Act dispute


By The Madison County Record | Dec 17, 2018

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EDWARDSVILLE – Madison County Circuit Judge David Dugan declined to overturn a decision of the Metro East Sanitation District board, terminating 10 employees last year. 

On Dec. 10, he ruled that a violation of the Open Meetings Act did not nullify the terminations. 

Dugan found that while plaintiff Amanda Greathouse claimed the board acted in executive session, evidence showed they returned to regular session before voting. 

He denied attorney fees for Greathouse, finding she did not prevail on her complaint. 

The board terminated eight laborers, a treasurer, and an office worker on July 5, 2017. 

The board placed the laborers on seasonal status. 

Greathouse sued the district, claiming the board failed to post the terminations on the agenda and failed to vote in open session. 

She sought an order declaring the vote null and void. 

This February, Dugan found the agenda violated the Open Meetings Act, and he gave Greathouse a chance to prove the board voted in executive session. 

His Dec. 10 order found she didn’t deliver. 

Dugan wrote that relief for violations of the law can include requiring a meeting be open, enjoining future violations, ordering minutes be made available, and declaring actions null and void. He added that the Legislature limited a judge’s discretion to nullify actions by declaring them void only when taken at closed meetings. 

The limiting phrase “necessarily excludes the authority of the court elsewhere under the Open Meetings Act to declare void any actions taken at a regular session,” he wrote.

According to his order, minutes of the meeting showed the board entered executive session at 9:48 a.m., and returned to regular session at 10:26 a.m. , and that district clerk Kim Hogue stated in an affidavit that the vote took place in open session.

Dugan devoted most of his order to explaining why he didn’t award legal fees. 

He wrote that the law grants authority to award fees to a party who “substantially prevailed,” but the law doesn’t define the phrase. 

There are numerous decisions analyzing the phrase under other statutes, particularly the Freedom of Information Act, he wrote.  

Dugan found no reason why interpretation of the Freedom of Information Act couldn’t provide reliable and meaningful guidance. 

For that law, he wrote, the Legislature removed the word “substantially” in 2009. 

He wrote that a similar amendment for the Open Meetings Act remains in committee. He cited cases from the First and Second appellate court districts, finding plaintiffs weren’t prevailing parties because defendants produced records to them after they sued. 

The First District found the removal of “substantially” was intended to increase the instances of obtaining fees, not to decrease them, he wrote. Further, the First District decision suggested that the word requires more of a litigant. 

“It suggests that the word ‘substantial,’ acting as a qualifier for the term ‘prevail,’ requires nothing short of a change of position by the government, precipitated by court order, that serves the betterment of the litigant,” he wrote,

Greathouse sought to declare the board’s action void, and cannot obtain that relief, Dugan held.

“It follows that the plaintiff cannot be said to have substantially prevailed on her claims,” he wrote. 

He wrote that his finding on the agenda provided her no relief, not to mention the relief she sought.

“The outcome in this matter did not favor plaintiff in any meaningful way,” he wrote.

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Metro East Sanitary Dist