The Illinois Attorney General’s Public Access Counselor has accepted my Request for Review of the DeKalb city council’s decision of May 26 to raise the city manager’s pay without public discussion.
From the Request:
There was no public deliberation of this matter even though citizens requested beforehand, both privately and publicly, that Council remove the item from the consent agenda to discuss and vote on it separately.
I believe a reasonable person would conclude that the matter had been discussed in closed session, which of course is allowed by the Open Meetings Act. However, 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. These things did not happen, so the public was deprived of information such as why the raise is justified, how it affects the current budget, and why the decision was made to make it retroactive.
Although I did not specifically allege that an improper closed session took place — my focus is on council’s failure to bring what was discussed in closed session to light — the PAC will review both open and closed session meeting minutes. And there’s a question hanging: Who’s bright idea was it to place the raise on the consent agenda to avoid public deliberation, and how was consensus reached? The personnel exception to OMA allows only deliberation of:
The appointment, employment, compensation, discipline, performance, or dismissal of specific employees of the public body or legal counsel for the public body, including hearing testimony on a complaint lodged against an employee of the public body or against legal counsel for the public body to determine its validity. [5 ILCS 120/2(c)(1)]
Nothing in this exception allows for discussion about how to dodge public openness via consent agenda.
To my knowledge, three citizens requested of council members that they remove the item from the consent agenda for separate consideration. Council used to honor these requests. If they had done so on May 26, the city wouldn’t have to explain its actions now. Too bad.
Still on the subject of DeKalb’s service agreement with website designer CivicPlus.
There are two versions available: the agreement included in the February 9 agenda packet, and the version that Mayor John Rey signed on February 11.
No, they are not the same.
Yes, it is disturbing to think that we would be reading one version of a contract while city council votes on another.
They apparently continued to work on it after posting the agenda, and didn’t bother to update so the public could look at the same contract that council was voting on.
Another possibility would be that contract provisions were amended during the meeting, except there is nothing in the meeting minutes to indicate anything of the sort happened.
I’ll pull out an example of one of these differences between the two documents that I’ve found so far. Continue reading One of These Things is Not Like the Other
While there are several things wrong with the city’s new Freedom of Information Act policy when it comes to direct violations of FOIA as a law, there is also something larger and more insidious at work here.
What I’m talking about is that the FOIA policy item was placed as a resolution on the consent agenda of the meeting. The move side-stepped the obligation to hold first and second readings and have a final roll call vote.
An even more basic error is that the city is now writing resolutions where they should be crafting ordinances. The consequence is that there are now a bunch of rules that now ostensibly apply to us, that we can’t look up in the Municipal Code. If we don’t stop this trend, we’ll end up with a bunch of “handbooks” with rules that the public is expected to follow, but which much of the public can’t access, or perhaps won’t even know exist.
What’s the difference between a resolution and an ordinance? An ordinance is a permanent, enforceable local law. A resolution is a written statement of a municipality’s opinion, will or intent.
Here’s an example of a resolution. It has a lot of “whereas-es” explaining the intent to authorize an intergovernmental agreement, and more importantly it’s not trying to regulate Jen Q. Public.
I believe the city passed this measure as a resolution in order to avoid public discussion and to keep the provisions off the books and therefore out of the hands of people who would embarrass them about their missteps.
DeKalb’s city council both introduced and passed a Freedom of Information Act policy last night.
Yes, there was a rush to put into place a FOIA policy written by city attorney Dean Frieders, who is proven to have trod upon the Open Meetings Act previously. As you might well guess, there are also problems with the new policy, and by this I mean the city has placed a seal of approval on illegal acts. Continue reading Here’s What’s Wrong with DeKalb’s New FOIA Policy
The determination arrived Friday. Find it here.
The Illinois Attorney General’s Public Access Counselor (PAC) has found that City of DeKalb violated the Open Meetings Act (OMA) in two ways when it approved a settlement agreement with the U.S. Department of Justice on January 12:
The city misused the exception to open meetings having to do with imminent/pending litigation by failing to first make a finding that there actually was imminent/pending litigation.
The city failed to take final action (vote) to approve the agreement in open session.
While both violations are important in helping council members understand the OMA better, as well as to evaluate the performance of their attorney AKA SuperLawyer, it’s the second that probably has more implications for how city business is done in DeKalb. Continue reading DeKalb Violated the Open Meetings Act in Approving Settlement Agreement
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.
Continue reading Council Needs New Counsel
Here’s an excerpt from a memo included with next week’s council meeting agenda:
The City of DeKalb maintains Chapter 2 of the City Code which governs the City Council and meetings thereof. Old versions of the City Code included provisions which purported to prohibit public comment at certain meetings of the City Council or Committee of the Whole. In 2014, the City Council adopted Section 2.04(d) of the City Code, which clearly denotes that the public has the right to speak at any public meeting of the City Council or any derivative body thereof, including the Committee of the Whole.
Nope, the Code specifically mentions the Planning & Zoning Commission but not Committee of the Whole (CoW).
That’s important because Chapter Two of the Municipal Code still includes exceptions to allowing public comment, particularly in the case of CoWs.
c) The intent and purpose of the Committee of the Whole meetings shall be primarily for the purpose of discussion of consideration items brought before the Council and various smatters which require a presentation and/or upon which discussion is anticipated, but not for the passage of Ordinances or Resolutions. Public comments shall generally not be permitted at such meetings, but rather shall be reserved for the City Council meeting immediately following such meetings. The Committee of the Whole meeting shall be treated as a meeting where public comment is not permitted under Section 2.12(ad) of this Code. (13-51)
CoW meetings are where city staff make their case to council about stuff they want. What they don’t want is for you to rebut their arguments and they’ve gone to some lengths to keep your voice out of these meetings. For years they just outright prohibited your comments. Then about six months ago, they changed the rules to abide by the Open Meetings Act (OMA) but took steps that essentially kept the changes secret.
I’ve put together a timeline for you. Continue reading You CAN Comment at Committee of the Whole Meetings — Here’s Why You Didn’t Know That
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. Continue reading AG Investigating Possible Open Meetings Act Violations by City of DeKalb
**Update** 1/26. Related: “Sales tax coffers could get boost with new law”. Discusses the Marketplace Fairness Act and its impact (if it ever passes the U.S. House) on state revenues.
**Update** 1 p.m. Related: “Now comes the Internet Sales Consultants”. It provides more food for thought on this scheme, as well as a description of an omission that sounds like a possible violation of the Open Meetings Act.
DeKalb’s city council is considering a new kind of retail revenue source. You should know about it because your tax money is involved.
City leaders are trying to lure Internet retailers with an 85 percent sales-tax rebate.
The first step in the coaxing process came Monday when aldermen unanimously approved an agreement with a shell company called Great Lakes Economic Development LLC.
The company was created by Tom McPeak, a partner with Atlanta-based Barnwell Consulting, who said he has an undisclosed client interested in setting up shop in DeKalb.
McPeak is an acquaintance of Roger Hopkins. Hopkins used to head the DeKalb County Economic Development Corporation, and after that contracted with the city to provide economic development services for a time. And it looks like he’s done us a solid in facilitating an introduction.
Let’s take a closer look at the potential in this gift. Continue reading DeKalb’s Freakishly High Sales Tax Rate Might Actually be Good for Something
I’ve read the College Town Partners documents that were leaked to the Preserve Our Neighborhoods (PON) group. (Want copies? Send an email to firstname.lastname@example.org.)
The agreements, which were never signed, lay out a corporate partnership between City of DeKalb, NIU, a local developer and two banks.
They strike me as kind of nuts, actually, being fraught with conflicts of interest that government bodies could never ignore. Whoever developed them — at this point I’m envisioning somebody’s partially demented but clout-heavy uncle who must be humored — possesses no grasp of the “public” part of public projects.
For example, the agreements place the DeKalb city manager in the position of manager of a self-interested company operating in the same community. They also attempt to make rules for the participation of the government bodies (e.g.: confidentiality, non-compete clause, predetermined developer) but that’s the flip of what’s supposed to happen.
The plans as written didn’t stand a snowball’s chance in sunlight. Still, somebody thought enough of them to stuff 60 pages into an envelope to mail to the PON folks. Why? I think it must be a warning that an awful lot of planning has been going on behind closed doors, and that some of it may not represent the public interest.
Speaking of which, let’s look at the recent naughtiness of your mayor that ties in here. Continue reading College Town Partners Agreements are Kind of Cray, but Still Important