Council Needs New Counsel

Sometimes we believe things that are completely false, and a lot of times belief holds strongest when it comes to having faith in professionals who, by definition, are supposed to have your back.

That’s what I think is happening with the DeKalb city council: They are trusting that what city attorney Dean Frieders says about the law is right. Well, they shouldn’t.

Today I’ll show you examples for why I have come to this conclusion, starting with the January settlement agreement with the Feds that was approved in secret. The city attorney says it was OK to do this because the city manager has the spending authority to sign contracts costing less than $20,000. I’m going to explain why it’s not OK.

The road to revelation began with a reading of an opinion issued by the Attorney General earlier this year following a review of a Freedom of Information Act dispute. In this case, Village of Rosemont denied the Chicago Tribune records showing how much the village paid Garth Brooks for his appearance in its publicly-funded entertainment venue. Rosemont denied the information on account of its ordinance prohibiting the release of such information. The ordinance, the village argued, was allowed under its home rule powers.

Here’s what the Illinois Attorney General had to say about it:

The Village’s ordinance is ineffective to supersede the requirements of FOIA because prescribing conditions for accessing governmental records is a matter of Statewide, not local, concern, and therefore does not pertain to the Village’s government and affairs for purposes of exercising the Home Rule powers granted by Article VII, Section 6(a) of the Illinois Constitution of 1970.

The only exceptions to FOIA rules are those allowed by the State of Illinois. Local public bodies cannot carve out their own exceptions to FOIA, even if they have home rule powers.

When I set out to see if the Open Meetings Act works the same way as FOIA, this is what I found:

Home rule units are specifically required to comply with the Act. A home rule unit cannot adopt weaker standards, although it “may enact an ordinance prescribing more stringent requirements binding upon itself which would serve to give further notice to the public and facilitate public access to meetings.”

So let’s look at settlement agreements. DeKalb routinely allows its city manager to use her spending authority to approve settlement agreements, including separation agreements, that she can negotiate to cost $19,999 or less.

What’s more, this has been the practice for years. Somehow, the whole town has accepted the notion that it’s OK to negotiate and approve a settlement agreement secretly if the costs are believed to fall under $20,000. Yet there is no exception in the statute that I can find that is conditioned upon any dollar amount.

Using the spending authority is quite a stretch in itself, too. Let’s look:

2. The City Manager or his designee shall have the authority to enter into contracts (within amounts authorized by the approved annual budget and in accordance with all applicable laws) in the amounts from $1 to $20,000 without the necessity of any additional City Council approval. (09-71, 2014-25)

The spending authority obviously is about direct purchasing of budgeted goods and services for the city, in fact the the whole page is (54-8). Settlement agreements contain more: deadlines, nondisclosure agreements, and so on. The city manager has no business approving such provisions on her own.

Clearly, the spending authority does not supersede state law, nor is it even meant to. But everybody thought it did because the city attorney said so.

There are other recent examples that are problematic with regard to OMA as well.

— The case of the late-hour about-face regarding the new management compensation plan might violate the strict provisions of the OMA exceptions for personnel and/or collective bargaining, as well as the OMA rule for having meetings convenient to the public.

— The city has only recently fully complied with the Open Meetings Act rule that there must an allowance for public participation at all meetings, including Committee of the Whole — a rule that is about two years old.

— And, finally, this week a 3% pay raise for the city manager was passed without discussion — or rather, of course there had to have been a discussion but it certainly did not take place in an open meeting. Whether the closed session met the strict provisions for talking about compensation of the city manager or not, the public has so far been cheated of the open deliberation that OMA demands between the closed session and the vote.

Still think Dean is keen, folks? That may get you into trouble.