AG Investigating Possible Open Meetings Act Violations by City of DeKalb

Early last month, DeKalb’s city council considered whether they should waive the usual bidding process and immediately sign a contract with a website designer who appears to be “besties” with the city manager. The reason for wanting to waive bidding? Staff claimed the city had a crisis foisted upon it by the U.S. Department of Justice following a recently completed review of DeKalb’s website. The DOJ had found the city non-compliant with Americans with Disabilities Act rules and had given DeKalb an ostensibly super-tight deadline for correcting the deficiencies.*

There is a whole lot to say about the discussion and multiple votes taken on this item and we may get around to saying it here, too.

However, today I want to concentrate on the negotiated, formal settlement agreement with DOJ that city seems reluctant to discuss explicitly in public meetings.

Let’s make it clear that this is a tale of two city council meetings in 2015: January 12 and February 9. January 12 is when the contracted city attorney Dean Frieders signed the settlement agreement with DOJ. February 9 is when city staff selectively used some of the settlement terms to push for a new website.

Council must have authorized Frieders to sign the agreement. However, the January 12 agenda does not contain a resolution allowing Frieders to accept the settlement agreement on behalf of the city. There is nothing recorded about the agreement in the January 12 meeting minutes, either.

Likewise, when city administrators were pushing for a no-bid contract with website designer CivicPlus on February 9, the corresponding background materials contained in the agenda packet included 60+ pages of marketing materials and a memo but did not include a copy of the actual settlement document.**

Indeed, no actual direct mention of the agreement appear in the memo, even, only statements about DOJ “contacting” the city and DOJ “involvement.”

They seem to be avoiding use of the words “settlement” and “settlement agreement.” Why?

I see two possibilities here so far. Frieders either signed the agreement without council authorization or he obtained the authorization of council in a closed session of the council. My hypothesis is that he obtained authorization in closed session under the Section 2 exception to the Open Meetings Act that provides for closed session discussion of pending or imminent litigation. A closed session under the litigation exception was scheduled for that evening.

The problem is, council seems to have skipped a step.

Final action. No final action may be taken at a closed meeting. Final action shall be preceded by a public recital of the nature of the matter being considered and other information that will inform the public of the business being conducted.

The requirements of recitation and final vote in public is why the mayor reopens council meetings following closed sessions. The meeting minutes in question do not indicate the council took any such action in the reopened January 12 meeting, so I submitted a request to the Attorney General’s Public Access Counselor to review the matter and determine whether Open Meetings Act violations occurred on that date.

Late last week the PAC accepted the request, saying further inquiry is warranted. Here’s what the PAC wants from the city:

Please provide a written response to the allegations in the Request for Review which includes a detailed explanation of the matters decided at the January 12, 2015 meeting and whether the settlement with the United States Department of Justice was considered by the City Council. Please also provide a copy of the closed session minutes and verbatim record for the January 23, 2015 meeting for our confidential review.

The Open Meetings Act provides both civil and criminal penalties for violations.

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*On February 9 the city attorney reported he had negotiated a deadline four months away. City staff created a sense of urgency around it despite the fact that a potential vendor had already estimated, in late January, that it would take a mere 54 hours to fix the ADA compliance problems and cost $8,100. What’s particularly noteworthy is that city staff did not produce the estimates for consideration even when a city council member explicitly asked what the “band-aid” approach would cost (vs. designing a whole new website for $56,000). The estimate — which included 22 pages of detailed information about needed corrections — was later obtained via a Freedom of Information Act request.

**The Daily Chronicle published a story on the settlement February 3, the same day as the DOJ’s public release of settlement agreements for four cities including DeKalb. Scroll to the bottom of the release to access the individual agreements.