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.

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.

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. Read the rest of this entry

    The data for the following charts come from Comprehensive Annual Financial Reports (CAFRs).

    In view of DeKalb staff’s continually stated desire to hire, I’ve begun with a look at the numbers of full-time equivalent employees. The city is using a figure of 220 city employees during its budget process instead of the most recently available CAFR number of 230. I’ve arbitrarily split the difference for the chart.*

    No matter whose number you use for the past year, DeKalb’s been hiring at a brisk pace following the Great Recession crash-and-burn. However, some council and Financial Advisory Committee members would like to start putting the brakes on hiring. Let’s look at why. Read the rest of this entry

    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.
    Read the rest of this entry

    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. Read the rest of this entry

    On the February 9 DeKalb city council meeting agenda was this action item:

    2. Resolution 2015-011 Waiving Competitive Bidding and Authorizing the Execution of a Website Design Agreement with CivicPlus in an Amount not to Exceed $56,189 in Year One.

    Staff said they didn’t have time to put out Requests for Proposals (RFPs). They claimed they’d been taken totally by surprise by Department of Justice findings that the city’s website was not compliant with Americans with Disabilities Act standards and needed to act this instant to meet a tight deadline in June.*

    Did the city council pass the resolution? I honestly don’t know. The discussion took one hour, twenty-six minutes and there were several votes taken, including one that I described in my notes as “original motion, DEAD, 9:07.” I could be wrong. At any rate, council still continued to talk and vote until an expenditure up to but not exceeding something around $51,000 was passed 5-3.

    There’s another potential issue besides the possible zombie motion, too. Waiving bidding on a public improvement (as opposed to routine procurement) of $20,000 or more generally requires a 2/3 majority to pass. So do some budget amendments, and the CivicPlus deal definitely did blow the website budget of $20,000. I’m not sure what the exception was that allowed for a simple majority vote in this case.

    Lest you think I’ve totally lost it, let me tell you I’m not the only one. Staff have not been able to get the minutes right for this meeting and the culprit is the CivicPlus discussion. Right now we’re awaiting the second revision. Read the rest of this entry

    Mayor John Rey had a guest column in the Chronicle this week. As is par for the course with City of DeKalb administrations, he calls criticism of the city’s actions “misinformation” and “rumors.”

    There are two reasons people are upset. One is evidence that the city withheld information about the U.S. Department of Justice evaluation of DeKalb’s compliance with Americans with Disabilities Act. The other is the manipulation of information to create anxiety over a DOJ deadline, which enabled the proposal of a no-bid contract with an overly expensive, non-local, sole-source website designer that the city manager likes.

    We’ll discuss the first reason today. Mayor Rey, after you: Read the rest of this entry

    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. Read the rest of this entry

    The city council voted Monday on a measure to waive the customary bidding process and award a contract to out-of-towners for a new custom website. Staff insisted only CivicPlus could make DeKalb’s official website comply with Americans with Disabilities Act (ADA) rules within a 4-month deadline negotiated with the U.S. Department of Justice.

    Some city employees, including the city manager, have worked with CivicPlus previously and elsewhere.

    Some city residents have questions about this deal and Bessie Chronopoulos offered a list of hers in a letter to the editor. Read the rest of this entry