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FIRST DIVISION
December 8, 2003

No. 1-02-3429

Plaintiff, University Professionals of Illinois, Local 4100 ofthe Illinois Federation of Teachers, is a labor organization thatrepresents workers employed by state universities (Local 4100). Plaintiff, Mitchell Vogel, is the president of Local 4100. TheIllinois Board of Higher Education (IBHE) is a public body thatcoordinates educational, research, and public service programs forthe state universities in Illinois. Defendants, James Stukel,Sylvia Manning, Nancy Cantor, Richard Ringeisen, James Walker,Walter Wendler, David Werner, John Peters, Victor Boschini, LouisHencken, Donald Spencer, Elnora Daniel, Salme Steinberg, and StuartFagan, are all presidents or chancellors of various stateuniversities in Illinois. The defendants formed an organizationcalled the Council of Presidents (Council) to give advice and tomake recommendations to the IBHE. The Council of Presidents meetsprior to IBHE meetings and designates one of its members to speakon behalf of the Council.

Plaintiffs filed a complaint alleging that the Council, whichheld meetings closed to the public, was meeting as a public bodyand was subject to the provisions of the Open Meetings Act(Meetings Act) (5 ILCS 120/1 et seq. (West 2000)). Defendantsmoved to dismiss the complaint under section 2-615 of the IllinoisCode of Civil Procedure on the ground that the Council was not apublic body under the Meetings Act. 735 ILCS 5/2-615 (West 2000). On October 9, 2002, the trial court granted their motion todismiss.

The only issue on appeal is whether the trial court properlygranted defendants' section 2-615 motion to dismiss. An ordergranting a section 2-615 motion to dismiss is reviewed de novo. Wakulich v. Mraz, 203 Ill. 2d 223, 228, 785 N.E.2d 843 (2003). Inreviewing a motion to dismiss:

"We take as true all well-pled facts andreasonable inferences therefrom and consideronly those facts in the pleading and includedin attached exhibits. [Citation.] We willnot affirm dismissal of a complaint unless itis clear that a plaintiff cannot prove a setof facts that will entitle him to the reliefsought. [Citation.] However, legalconclusions and factual conclusions that areunsupported by allegations of specific factswill be disregarded in ruling on a motion todismiss. [Citation.]" Safeway Insurance Co.v. Daddono, 334 Ill. App. 3d 215, 218, 777N.E.2d 693 (2002).

After reviewing the complaint, we agree that the Council is not apublic body under the Meetings Act and we therefore affirm.

The following facts are alleged in the complaint. The IBHEwas set to meet in Chicago on December 11, 2001. At this meeting,one of the topics to be discussed was IBHE budget recommendationsfor the 2002-2003 academic year. The complaint alleged that thesebudget recommendations would have a substantial impact on thesalaries of faculty members represented by Local 4100.

According to Local 4100, the Council was to give advice andrecommendations to the IBHE concerning the positions of thepresidents and the chancellors of the state universities in regardto annual budget and appropriations issues as well as othersubjects that related to affording higher education to the citizensof Illinois. The complaint alleged that the Council met prior tothe IBHE meetings and designated one of its members to speak on itsbehalf at the IBHE meeting. According to Local 4100, the meetingsof the Council are paid for out of funds appropriated by the state. It also alleged that at its meetings, the Council discussed issuesrelating to public higher education in the state and to the fundingthereof.

The complaint also alleged that the meetings of the Councilwere closed to the public, that the Council published no agenda forthe meetings, and that no notice of the meetings was given to thepublic. According to Local 4100, the Council published no minutesor other public record of its meetings.

Paragraph 22 of the complaint alleged:

"The meetings of public bodies inIllinois are governed by the Open MeetingsAct, 5 ILCS Section 120/1, et seq. The policybehind the Open Meetings Act is 'that publicbodies exist to aid in the conduct of people'sbusiness and that the people have a right tobe informed as to the conduct of theirbusiness.' Exceptions to this policy arepermitted 'only in those limited circumstanceswhere the General Assembly has specificallydetermined that the public interest would beclearly endangered or the personal privacy orguaranteed rights of individuals would clearlybe in danger of unwarranted invasion.' "

The complaint went on to state that the definition of the term"public body" in the Meetings Act included advisory bodies to state boards such as the IBHE. The complaint then stated that theCouncil constituted an "advisory body" to the IBHE and wassupported by tax revenues. As a result, the Council fell withinthe definition of public body in the Meetings Act.

The complaint claimed that the failure of the Council topublish its meeting agendas or to open the meetings to the publicconstituted a violation of the Meetings Act. Local 4100additionally asserted that, unless enjoined, the Council wouldcontinue to hold its meeting in secret.

Section 1.02 of the Meetings Act states, in pertinent part:

" 'Public body' includes all legislative,executive, administrative or advisory bodiesof the State *** and all *** boards, bureaus,committees or commissions of this State, andany subsidiary bodies of any of the foregoingincluding but not limited to committees andsubcommittees ***." 5 ILCS 120/1.02 (West2000).

Section 2 of the Meetings Act states, in pertinent part:

"Openness required. All meetings ofpublic bodies shall be open to the publicunless excepted in subsection (c) and closedin accordance with Section 2a." 5 ILCS 120/2(West 2000).

Local 4100 contends that the Council is an "advisory body"under the plain language of section 1.02 of the Meetings Act. Local 4100 concludes that because the Council advises the IBHE ofits position on various matters, the Council is an "advisory body"and falls within the definition of a public body under section1.02. Although the term "advisory body" is not defined in theMeetings Act, the question of what constitutes an advisory body hasbeen addressed by the Illinois courts.

In People ex rel. Cooper v. Carlson, 28 Ill. App. 3d 569, 328N.E.2d 675 (1975), the petitioner-newspaper publisher filed a suitseeking a writ of mandamus to compel the defendant Kane County toallow the petitioner and the general public to attend meetings ofthe staff of the Kane County development committee, which concerneda proposed development project by the Mark VII Corporation. Thepetition also sought an injunction prohibiting future meetingswithout giving prior public notice. The trial court dismissed thesuit and an appeal followed.

In Carlson, the Kane County Board of Supervisors (Board)established a development committee, which was comprised of nine ofthe Board members for the purpose of considering and makingrecommendations to the entire Board concerning zoning and landplanning development. The Board approved subdivision regulationsthat had been adopted by the development committee. To moreadequately perform its functions, the development committee createda development department and divided staff into five separatedivisions due to the specialization, technical knowledge, andexpertise necessary in each division. Each of these divisionsincluded clerical and technical employees.

The directors of these various divisions voluntarily arrangedfor weekly "technical staff meetings." These meetings were notrequired by the Board or by the development committee. The recordshowed that the meetings were held for interdepartmentalconvenience and efficiency with the objective of saving the development committee time. No secretary was appointed to keepminutes of these meetings. Instead, an employee would take eitherlonghand or type written notes. Based on the discussions at thetechnical meetings, recommendations were made to the developmentcommittee.

The petitioner learned that the "staff" of the developmentcommittee had scheduled a meeting on a certain date which concernedthe actions of a development project that involved the Mark VIICorporation in Kane County. The petitioner requested to attend themeeting, was denied access, and filed suit.

After hearing all the evidence, the trial court dismissedpetitioner's action finding that the staff was not a public bodywithin the meaning of the Meetings Act. The trial court held thatto construe the Meetings Act in the manner suggested by thepetitioner would unnecessarily burden the staff.

In affirming the trial court, the appellate court found thatthere was no statute, ordinance, resolution, or other officialaction by the Board or by the development committee designating thetechnical staff as a public body or subsidiary body. Carlson, 28Ill. App. 3d at 571. It further noted that the function of thetechnical meetings was to provide more efficient service to thedevelopment committee and the Board whose meetings were held incompliance with the Meetings Act. Carlson, 28 Ill. App. 3d at 571.

The petitioner also argued that if any number of developmentcommittee or Board members met, they would become an advisorycommittee or public body giving professional advice. Thepetitioner pointed out that such an advisory committee did not fallwithin a specific exception to the Meetings Act which, at the time,allowed closed meetings where an advisory committee was appointedto provide a public body with professional consultation on mattersof professional ethics or performance. Carlson, 28 Ill. App. 3d at572.

The appellate court also rejected this argument, holding thatthe provision relied upon applied to an advisory committeeappointed to provide such consultation, not to employees whovoluntarily met in the interest of efficiency and to enhance theperformance of their duties. Carlson, 28 Ill. App. 3d at 572. Theappellate court ultimately concluded that the Meetings Act wasdirected to meetings of public commissions, committees, boards, andcouncils, and not to voluntary meetings or conferences ofdepartment heads or employees who seek to improve their performancein conducting business. Carlson, 28 Ill. App. 3d at 572

In Pope v. Parkinson, 48 Ill. App. 3d 797, 363 N.E.2d 438(1977), the plaintiff, a student reporter for a University ofIllinois newspaper, attended a meeting held by the defendantUniversity of Illinois Assembly Hall Advisory Committee(Committee). After members of the Committee voted to exclude theplaintiff from the meeting, the plaintiff refused to leave. TheCommittee then moved the meeting and refused admission to theplaintiff. The plaintiff filed a complaint against the chairman ofthe Committee and the University of Illinois board of trustees.

Plaintiff's complaint sought a writ of mandamus commanding thedefendants to open and give notice of the Committee's meetings. After hearing evidence, the trial court entered an order issuing awrit of mandamus which instructed the Committee to open itsmeetings to the public. The defendants then appealed.

In Pope, the appellate court found that the Committee, by itsvery nature, did not have deliberations that fell within the scopeof the Meetings Act because it was not appointed by, or accountableto, any public body of the state. Pope, 48 Ill. App. 3d at 799. Specifically, the court stated:

"[T]he Committee is an internal committeewithin the University whose sole function isto advise University administrators on matterspertaining to internal university affairs. Nostatute creates the Committee or defines thelimits of its authority. The Committee'sunpaid members are not 'officially' appointedby the chancellor, although they areinformally appointed by the chancellor to anannual term and can be dismissed by thechancellor at any time. In the event of sucha dismissal, the public tax burden will beneither increased nor decreased." Pope, 48Ill. App. 3d at 799.

Relying upon the decision in Carlson, noted above, the court concluded that the Meetings Act was intended to apply to publiccommissions, committees, boards, councils, and other publicagencies, but was not intended to open to the public thedeliberations of merely informal advisory committees who discussinternal university affairs. Pope, 48 Ill. App. 3d at 800.

Local 4100 attempts to distinguish Carlson and Pope on theground that both cases "dealt with internal committees composed ofthe staff of public officials," whereas here, the Council is "notthe staff of the IBHE and [is] not subordinate to it." Local 4100contends that the Council advises the IBHE on public issues and notthe internal affairs of the agency and therefore should not beexempted from the requirements of the Meetings Act.

Local 4100 contends that People ex rel. Difanis v. Barr, 83Ill. 2d 191, 414 N.E.2d 731 (1980), is controlling. In Difanis,nine members of the Urbana city council decided to hold a pre-arranged party caucus immediately prior to a special session of theUrbana city council on October 23, 1978. Eight of the nine councilmembers attending the party caucus were democrats. Notably, eightpersons constituted a quorum of the council. The party caucus washeld in the home of a city council member approximately 90 minutesbefore the city council meeting and it was called to discussmatters the city council would consider at the meeting later thatnight. No agenda was set for the caucus and no votes were taken.

The parties agreed that the nine defendant council memberswere not meeting at the caucus as a committee of the Urbana citycouncil and that they received no compensation for attending themeeting. Four of the five matters to be discussed at the citycouncil meeting were discussed at the caucus. The record indicatedthat three votes were taken at the city council session on mattersdiscussed at the caucus. On a vote to approve a ward map, the ninedefendants voted as a bloc and the measure was passed by the citycouncil 9 votes to 4. The defendants stipulated that they hadcaucuses of this nature in the past and would continue to do so inthe future.

The plaintiff, the Champaign County State's Attorney, filed adeclaratory judgment action seeking a declaration that the conductof the nine defendants violated the Open Meetings Act. The trialcourt entered judgment in the plaintiff's favor and the appellatecourt affirmed.

On review, the supreme court held that the clearly enunciatedpublic policy of the Meetings Act would be poorly served if thecourt were to carve out exceptions other than those expresslystated in the Act for informal political caucuses where, in thatcase, public business was deliberated and it appeared that aconsensus on at least one issue was reached outside the publicview. Difanis, 83 Ill. 2d at 199. The court further found thatthe Meeting Act had been amended to include unofficial or informalmeetings. Difanis, 83 Ill. 2d at 200. In support of thisproposition, the court quoted the California decision in SacramentoNewspaper Guild, Local 92 v. Sacramento County Board ofSupervisors, 263 Cal. App. 2d 41, 69 Cal. Rptr. 480 (1968), whichstated:

" 'An informal conference or caucuspermits crystallization of secret decisions toa point just short of ceremonial acceptance. There is rarely any purpose to a non-publicpre-meeting conference except to conduct somepart of the decisional process behind closeddoors. Only embracing the collective inquiryand discussion stages as well as the ultimatestep of official action can an open meetingregulation frustrate these evasive devices.' " Difanis, 83 Ill. 2d at 200, quotingSacramento Newspaper Guild, Local 92 v.Sacramento County Board of Supervisors, 263Cal. App. 2d at 50-51, 69 Cal. Rptr. at 487.

Thus, the Difanis court found that to allow the nine defendants tocircumvent the Meetings Act simply because the meeting wasdesignated as an informal gathering or informal caucus would thwartthe intent of the Meetings Act. Difanis, 83 Ill. 2d at 200.

Local 4100 claims that the Council here has all the earmarks of a public body. The Council members are all "high publicofficials" who have "round the clock responsibilities." Inaddition to other issues pertaining to higher education, theCouncil advises the IBHE on budgetary and appropriations issues. In turn, the IBHE advises the General Assembly on these issues andcoordinates the teaching, research and service missions of theinstitutions run by defendants. Local 4100 alleges that themeetings in question concern public issues and are financed bypublic funds, and further allege that defendants meet prior toregularly scheduled meetings of the IBHE and then designate one ofthe Council members to speak on their behalf. Local 4100 allegesthat "the obvious purpose of the meetings is to foster thepresentation of a 'unified front' and to maximize the weight of therecommendations of the Presidents and chancellors as a whole." Thus, Local 4100 concludes that defendants' actions are preciselythe conduct prohibited by Difanis and fall squarely within themeaning of public business that must be open to the public underthe Meetings Act.

Defendants rely on Carlson, Pope, and another decision, Boardof Regents of the Regency University System v. Reynard, 292 Ill.App. 3d 968, 686 N.E.2d 1222 (1997), to support their position onappeal.

In Reynard, the plaintiff, the Board of Regents of the RegencyUniversity System (Board), filed a declaratory judgment actionagainst the defendant, the local State's Attorney, seeking adetermination that the Meetings Act did not apply to the AthleticCouncil (Athletic Council) of Illinois State University (ISU). Thedefendant had previously informed the Board that the Meetings Actdid apply to Athletic Council meetings and he had threatenedcriminal prosecution for violating the Meetings Act.

In Reynard, the record indicated that the Illinois GeneralAssembly created the Board and that the academic senate (senate),which was the primary body that determined education policy at ISU,reported to the president who, in turn, reported to the Board. External senate committees were those composed of people who arenot on the senate. The role of the senate committees was to makereports and recommendations to the senate. The bylaws of theAthletic Council provided that it was an external standingcommittee of the senate. The record also showed that, in reality,the Athletic Council functioned as an advisory body to the athleticdirector, with primary advisory responsibilities to the president. Further, the Athletic Council gave advice on the development ofbudgets and policies governing the intercollegiate athleticprogram.

The ISU athletic director testified that the AthleticCouncil's recommendations were not binding on him or the president. He stated that the Athletic Council was an advisory body providingadvice and feedback to the president and the athletic director onathletic issues. He said the Athletic Council only dealt withinternal ISU matters, it had no budget, and none of its members waspaid for its work.

After a bench trial, the trial court found that the AthleticCouncil was a public body subject to the Meetings Act. The issueon appeal was whether that decision was proper. Before providingits analysis, the reviewing court noted that the "fact the[Athletic] Council [was] an advisory body [did] not exempt it" fromthe application of the Meetings Act. Reynard, 292 Ill. App. 3d at977.

In affirming the trial court, the appellate court noted that,"[i]t is clear from a reading of the definition of 'public body' in[the Meetings Act] that inclusion within that definition dependsprimarily upon organizational structure." Reynard, 292 Ill. App.3d at 977. Thus, the court looked to the structure of ISU, theSenate, and the Athletic Council to determine whether the AthleticCouncil was subject to the Meetings Act. Reynard, 292 Ill. App. 3dat 977.

The appellate court also observed that the senate was theprimary body set up to determine educational policy at ISU and theAthletic Council was created by the senate, which had delegatedspecific duties to the Athletic Council. Reynard, 292 Ill. App. 3dat 977. The court distinguished the Athletic Council from theinformal, ad hoc committee in Pope, finding that the AthleticCouncil was part of the formal organizational structure of ISU andits duties and responsibilities were set forth in the senate'ssupplemental bylaws. Specifically, the court stated that thecommittee in Pope, appointed by the chancellor of the university,rendered advice to the chancellor on one specific internaluniversity matter. However, the broad scope of the AthleticCouncil's responsibilities set forth in the supplemental bylawscontrasted sharply with the limited duties of the committee inPope. Reynard, 292 Ill. App. 3d at 978. Finally, the courtconcluded that the senate and the Athletic Council were both publicbodies under the Meetings Act. Reynard, 292 Ill. App. 3d at 978. It therefore determined that the Athletic Council had to complywith the Meetings Act. Reynard, 292 Ill. App. 3d at 978.

Defendants claim that the holding in Reynard undermines Local4100's analysis of Carlson and Pope. As noted above, Local 4100argues that the Meetings Act did not apply in Carlson and Popebecause they dealt with "internal committees" that dealt with the agency's "internal affairs." Defendants point out that, inReynard, the Meetings Act was held to apply to the Athletic Councilin that case even though it was an internal committee of ISU. Further, defendants assert that Local 4100 provides no contraryauthority to the rule announced in Reynard that "organizationalstructure" is a primary consideration in determining whether anorganization is a public body under the Meetings Act. Reynard, 292Ill. App. 3d at 977.

We find that Carlson, Pope, and Reynard are instructive on thequestion of whether the Council of Presidents is an advisory bodyof the state under the Meetings Act. These cases set forth anumber of factors a court should review in deciding whether anentity is a "public body" or an "advisory body" under the MeetingsAct. Those factors include who appoints the members of the entity,the formality of their appointment, and whether they are paid fortheir tenure; the entity's assigned duties, including dutiesreflected in the entity's bylaws or authorizing statute; whetherits role is solely advisory or whether it also has a deliberativeor investigative function; whether the entity is subject togovernment control or otherwise accountable to any public body;whether the group has a budget; its place within the largerorganization or institution of which it is a part; and the impactof decisions or recommendations that the group makes. Carlson, 28Ill. App. 3d at 571-72; Pope, 48 Ill. App. 3d at 799-800; Reynard,292 Ill. App. 3d at 974, 977-78.

Because most of what Local 4100 pled amounts to conclusionsand because it did not plead any of the factors listed in Reynard,we find the complaint was properly dismissed.

The following is only a summary of what the complaint statesbut contains the allegations we find significant for our review. First, it alleges that presidents and chancellors of the variousstate universities "formed an organization called the Council ofPresidents." Next, it states that the "purpose of the [Council]is to give advice and recommendations to the IBHE regarding thepositions of the Presidents and Chancellors of the StateUniversities regarding annual budget and appropriations issues andother issues which relate to provision of public higher educationto the citizens of Illinois." It states that the "meetings of theCouncil are paid for out of appropriated funds." It further statesthat the Council "constitutes an advisory body to the IBHE and issupported by tax revenues." The complaint concludes that theCouncil "falls within the definition of a public body [under] theOpen Meetings Act." Although these are not all of the allegationscontained in the complaint, these are the primary allegations thatrelate to the Council's formation and its structure.

These allegations, however, are conclusions unsupported by anyspecific facts, and "factual conclusions that are unsupported byallegations of specific facts will be disregarded in ruling on amotion to dismiss." Daddono, 334 Ill. App. 3d at 218. Becausethese allegations provide no facts, they are insufficient tosupport the claim that the Council is an "advisory body" under theMeetings Act.

In our view, what is absent from the complaint is even moresignificant than the conclusory allegations described above. Forexample, the complaint does not allege that the Council is part ofthe formal organizational structure of IBHE. It does not allegethat any of the Council members are members of the IBHE. There areno facts in the complaint to suggest that the Council members are"paid for their tenure." The complaint does not state that theCouncil has any duties assigned to it from the IBHE. As far as wecan tell, the Council does not have any bylaws; and there is nostate statute that created the Council. As pointed out above, the Council was formed by the presidents and chancellors of the variousstate universities to express its views to the IBHE. Granted, itsrole is advisory but that role is one that the Council created. There are no allegations to suggest that the Council has adeliberative or investigative function in relation to the IBHE orthat the Council is subject to government control. It does notappear that the Council is otherwise accountable to any publicbody. It does not appear to have a budget; if it does, no budgetis reflected as an allegation in the complaint. Although eachmember is part of a larger organization or institution,specifically, the university he or she heads, no member of theCouncil is a member of the IBHE. Finally, there is no allegationregarding the impact of the Council's recommendations upon theIBHE. Because the factors set out in Reynard are totally absentfrom the complaint, we find it was properly dismissed.

Notably, Local 4100 does not discuss the holding in Reynardwhich states that inclusion within the definition of a public bodyunder the Meetings Act depends primarily on organizationalstructure. Reynard, 292 Ill. App. 3d at 977. In Reynard, thecourt found that the Athletic Council in that case was part of theformal organizational structure of ISU. Reynard, 292 Ill. App. 3dat 978. It also found that the duties of the Athletic Council asan advisory body were set forth in the supplemental bylaws of theSenate. Reynard, 292 Ill. App. 3d at 978. Because the senate inReynard was a creature of the Board, it was a subsidiary publicbody of the Board and, in turn, the Athletic Council was a publicbody under the Meetings Act as it was an advisory body to thesenate. Reynard, 292 Ill. App. 3d at 978. The Council in thiscase is not part of the organizational structure of the IBHE and isclearly not a creature of the IBHE.

We also find that Difanis, the primary authority relied uponby Local 4100, is distinguishable from this case. In Difanis, nineUrbana city council members held a party caucus 90 minutes prior toa city council meeting to discuss matters the city council wouldconsider at its public meeting later that night. On one of theissues discussed at the council meeting, the nine defendants votedas a bloc consistent with the consensus they had reached at theearlier meeting. The court found that this conduct fell within thehard core of the proscriptions set forth in the Meetings Act. Difanis, 83 Ill. 2d at 211.

Difanis did not consider whether the defendants were an"advisory body" under the Meetings Act. Unlike the Council in thiscase, the defendants comprised a faction of city council membersthat held a closed-door meeting 90 minutes before the city councilmeeting. As pointed out above, the Council is not part of theIBHE. Instead, the complaint alleged that its purpose was to giveadvice and recommendations to the IBHE. It did not allege that theCouncil had authority to make any IBHE decisions, to vote on issueson the IBHE agenda, or to issue determinative recommendations tothe IBHE. For these reasons, we do not find Difanis to bepersuasive.

We agree with defendants that the fact that the Council inthis case was comprised of "high" or "elite" public officials whohad "round the clock" responsibilities had no bearing on whetherthe Council was a public body under the Meetings Act. Local 4100does not offer any authority in support of the fact that, becausethe Council was made up of important public officials, it should beconsidered an advisory and or a public body under the statute.

Finally, we agree with defendants that the Meetings Act mustbe construed to avoid unintended results. When the applicabilityof a statute is ambiguous, it "will be given a construction that isreasonable and that will not produce absurd, unjust, orunreasonable results, which the legislature could not haveintended." In re Application of the County Collector of DuPageCounty for Judgment for Taxes for the Year 1993, 187 Ill. 2d 326,332, 718 N.E.2d 164 (1999). As the court noted in Pope, theUniversity in that case had 294 advisory committees and "it wouldbe an intolerable burden for [a] court to require that each ofthose committees open their doors to the general public." Pope, 48Ill. App. 3d at 801. We do not believe that the legislatureintended the Meetings Act to be so broadly interpreted that everytime public officials informally meet or converse, thoseconversations become a matter of public entitlement.

We do not suggest to curtail the intent of the Meetings Act,which is to "ensure that the actions of public bodies be takenopenly and that their deliberations be conducted openly." 5 ILCS120/1 (West 2000). However, the Meetings Act cannot be triggeredevery time public officials meet and converse. 5 ILCS 120/2(a)(West 2000).

For the reasons above, the trial court's order of October 9,2002, is affirmed.

Affirmed.

GORDON and McNULTY, JJ., concur.