DeKalb’s Abuse of the Consent Agenda

We’ve occasionally pointed out how DeKalb’s ordinances don’t always match up to Illinois statutes. The most recent example is contained within the lawsuit filed last week against the city, which details how the language of the DeKalb Municipal Code differs from state law in the matter of mayoral voting.

So, too, does the language differ in the matter of the consent agenda. Here’s what the statute says (my emphases):

[65 ILCS 5/3.1-40-40] The yeas and nays shall be taken upon the question of the passage of the designated ordinances, resolutions, or motions and recorded in the journal of the city council. In addition, the corporate authorities at any meeting may by unanimous consent take a single vote by yeas and nays on the several questions of the passage of any 2 or more of the designated ordinances, orders, resolutions, or motions placed together for voting purposes in a single group.

And here are DeKalb’s rules:

c) The Consent Agenda may, in the initial discretion of the City Manager, include any of the items listed on the Regular Meeting agenda. Each and every matter contained on the Consent Agenda may be passed in an omnibus fashion and shall require the concurrence of a majority vote of the Aldermen holding office, with the right of the Mayor to vote as otherwise provided by law. At any Council meeting, any member of the City Council shall have the right to have any matter on the Consent Agenda removed therefrom and placed as a separate item on the agenda, within the appropriate category. At any time prior to a vote on the passage of the Consent Agenda, a member of the public may request of an Alderman that a matter be removed from the Consent Agenda and be placed as a separate item on the agenda. It is within the discretion of the Alderman to do so. (06-32)

DeKalb has once again created exceptions for itself. Instead of abiding by the rule that the consent agenda be approved by unanimous vote, it has lowered the bar to require a simple majority; and, in replacing the vote of the corporate authorities with aldermen only, is a rule that might exclude the mayor.

I’ve “googled” other council-manager Illinois municipalities that have home rule to see how they handle the consent agenda. Most of those I’ve found, such as Naperville and Hanover Park, specifically reference the statute as concerns unanimity and removal of items right on the agenda itself. Sycamore doesn’t, but Sycamore consent agendas appear to contain only minutes, reports, and bills to be paid.

Speaking of which, let’s refresh ourselves as to the definition of the consent agenda according to Robert’s Rules.

The consent agenda…allows members to vote on a group of items en bloc (as a group) without discussion. This is a good way to dispose of business that is noncontroversial. Approving the minutes, paying the bills, and approving customary donations are examples of noncontroversial business.

I’ve got a few old downloaded agendas from as far back as 2008, so I know DeKalb used to stick better to the rule of routine business as above. At that time, if an ordinance appeared on the consent agenda it would not be a new ordinance, but rather an administrative (“housekeeping”) or other minor amendment of the ordinance. If a resolution was listed, it would be about making an appropriation that had already been discussed during the budget process, or about allowing the mayor to renew a lease.

In terms of numbers, the consent agenda used to list maybe 3-6 items (and in those days they put mayoral appointments on it and — wrongfully — sometimes closed sessions, too). Last night’s consent agenda contained 11 items, several of them brand new and some demonstrably controversial.

The city manager is abusing her discretion and the council is failing to call her on it.

What to do? As regular readers know, I have alleged an Open Meetings Act violation in conjunction with the May 26 retroactive pay raise for the city manager via consent agenda, because:

OMA requires that closed session deliberation on personnel matters must end with public action, including recitation of the action item and giving other information to educate the public before the final vote is taken.

City of DeKalb has responded that the city manager’s 2-page memo (buried in a 400-page agenda packet, at that) fulfilled the requirement of the public recital. However, a decision issued by the Attorney General early last year suggests that’s a futile argument, as the AG made clear that the language of OMA “can only be construed to mean that the public body is required to provide a verbal explanation of the significance of its action to members of the public who are present at the meeting before the public body can proceed to consider taking action.”

Indeed, the consent agenda itself may need to evolve in light of this decision. In the September 2014 edition of Ancel Glink’s informative (and often hilarious) “Council Wars” question-and-answer-formatted handbook, they addressed the following:

8. Must the Clerk or Mayor publicly describe items on the consent agenda prior to the vote on the consent agenda?

A. Probably. A recent PAC opinion held invalid an action taken by a municipality because the agenda item was not publicly described prior to the vote.

Hmm, this part may not be worked out for awhile. Meantime, if you request an item be removed from the city’s consent agenda for separate consideration and the request is not honored — particularly if odds are that the item was discussed in closed session — you may want to request a review of the denial by the Public Access Counselor.