On Monday, the city council discussed the compensation ordinance that will go into effect upon installation of the city’s elected officers in May. This was just the first reading. Passage is expected during the regular council meeting on October 25.

Council at this point is on track to continue to deprive us of another election for city clerk. This body plans to pay the next mayor $22,500 per year, the next clerk $8,000.

Members seem intent on keeping the clerk a part-time position, based on a vague notion of protecting themselves from “liability,” which we know does not exist because the city has never gotten into trouble for violations of open meetings and open records laws before or after they ruined the office of the clerk.

No, the reality is that the liability works the other way. You see, while council has lots of leeway when it comes to assigning duties and setting compensation, any ordinance that passes must be reasonable. And we know that DeKalb ordinances having to do with the clerk are demonstrably unreasonable because they’ve interfered with elections of the clerk. Read the rest of this entry

No closer than 180 days before newly-elected city officials take office next May, the city council must, per state law, set compensation for them via ordinances. This could happen tonight, at the next regular meeting, or possibly in early November if all else fails.

Compensation is set now in order to help eliminate the conflict of interest that would be created by a council’s setting its own pay, or that of a clerk they like personally. It’s supposed to be about the jobs, not the personalities involved. Read the rest of this entry

DeKalb city clerk Jenny Johnson does not know where the official seal of the city is located, or even whether it is secure.

We found this out last Saturday, when she held a meeting to inform citizens of her current role, and to gather information about what we envision for the future. A dozen citizens attended, most of us members of the informal citizens’ committee called Citizens for Restoration of the DeKalb City Clerk.

Ms. Johnson explained that because of her part-time status, which she says is forced by low compensation of $5,000 per year, she felt compelled to transfer her authority over the city seal to a deputy clerk to avoid being continually on call to sign/certify/attest.

Unfortunately, the people she’s deputized are actually employees of the city manager’s office. Essentially, then, the city seal is under the control of the city manager’s office, a non-transparent arrangement that brings a slew of questions to bear about the custody and handling of official documents and use of the seal.

Yes, we’re talking about the loss of real-life “checks and balances” and what that might mean. Read the rest of this entry

In a recent letter to the editor, Misty Haji-Sheikh asked — and answered — who is supposed to ensure that DeKalb ordinances are enforced. Why? Because she found out there is an ordinance that is not being enforced.

The mayor, city manager and city attorney all have legal duties regarding ordinances. Since the ordinance 2015-30 is to hold at least quarterly meetings (these must be on the same day as the City Council after 1 p.m.) for discussion was passed as ordinance more than 14 months ago, can the mayor, city manager or city attorney explain why no required meetings have been held? Why aren’t they faithfully discharging their duties?

The ordinance, in part, says (my emphases):

Discussion, Planning and Vision Meetings: In addition to all other meetings contemplated herein, the City Council shall conduct at least four special meetings, with one such meeting occurring no less than quarterly, for the purposes of discussion, planning and visioning.

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If the ordinance language had been written as “may” instead of “shall,” the meetings would be optional. “Shall” means they are not optional. (Find the rest of the ordinance in the Municipal Code, here, in 2.05(b)).

Now, this wouldn’t even appear on my radar today, but for a member of the City Barbs Facebook Group having posted video of Monday’s council meeting, towards the end of which the mayor defends not having the meetings required by ordinance. He calls these meetings “goals.” He then lists all the council meetings he’s attended over the past 14 months and declares, “The suggestion that the city has not been engaged in strategic planning is nothing short of ridiculous.” Read the rest of this entry

This happened on Monday.

DeKalb’s council is made up of seven aldermen chosen by ward and a mayor. Aldermen seemed interested Monday in establishing a rule that would call for at least four aldermen to be in favor of a measure before it could pass.

On most questions brought before council, a simple majority vote is all that’s needed, and the mayor doesn’t (or at least isn’t supposed to) vote. Council already needs to have four in most situations.

What this potential proposal would do is impose the requirement of a super-majority vote on council if even one alderman is absent. And in the scenario of the non-voting mayor and four aldermen, unanimous votes would be required to get anything done. And for what good reason?

This is, in short, not smart. It’s a bad solution for a non-existent problem. It rarely happens that even two council members are absent for any council meeting. What’s more, one situation where we might anticipate the absence of several council members would be a special meeting to deal with an emergency. To be shackled with a super-majority or unanimous vote requirement could have awful implications when time is of the essence for decision-making.

No, as long as the quorum of five is met for conducting the city’s business, leave the voting rules for aldermen alone.

That being said, there is a structural problem with DeKalb’s voting rules. Read the rest of this entry

DeKalb used to have in-house legal counsel, but now has contracts with individuals and firms to supply legal services.

One of the legal service providers is Dean Frieders of Frieders Law, LLC, who supposedly works for DeKalb three days per week.* Frieders is required by his contract with the city to supply all of his own staff for the $208,000 per year that we pay him. If any employee of City of DeKalb were to work for Frieders in any capacity, it would constitute a violation of that city contract.

Trouble is, DeKalb still employs a full-time legal assistant, and it looks like she works for Frieders. I say this because her actual job description requires her to assist legal counsel as well as the city manager. Read the rest of this entry

We know from our recent examination of the doctrine of incompatible offices that compromising the loyalty of an elected officer is prohibited. A person holding elected office cannot hold any other role — as employee, appointee, or a second elected office — that could reasonably be expected to conflict, or even appear to conflict, with the first elected office. A person occupying elected office has one loyalty, and that’s to the electorate. Nobody else is the elected person’s boss.

In DeKalb government, this is true of city council members and the city clerk. Both are elected positions and nobody should buy the story that any of these elected officers are also employees of the municipality, for to do so invites perversion of the original intent of an elected office.

As we saw in the post about incompatible offices, however, DeKalb holds itself to no such standard, but instead chooses to create confusion by pretending that the city clerk’s position comprises a dual role, that of officer and employee at the same time.

Moreover, some of the offenses committed against the doctrine of incompatible offices are way worse than the confusion sown verbally by city staff. For reasons we will examine at a later date, the corporate authority (city council) of DeKalb has in recent years approved ordinances in line with an appointed clerk instead of an elected one. In a very real way, the corporate authority has usurped the statutory powers placed with the elected city clerk and vested them in the city manager. Read the rest of this entry

DeKalb isn’t particularly good at observing boundaries. One example is that DeKalb’s contracted attorney is allowed to sit with the city council during planning sessions as an assistant in setting strategic priorities. In other words, a contractor gets to step out of his assigned role to provide unfettered input into public policy that the public itself never gets to enjoy.

But while the attorney’s extra privileges are plenty objectionable from an ethics standpoint, the most egregious errors in failing to maintain separation of roles have arguably come about in DeKalb’s dealings with the city clerk’s office beginning in 2012, when clerk Steve Kapitan was forced to resign. Here’s what city staff said about it at the time (my emphases):

[City manager Mark] Biernacki explained that because of Kapitan’s unique situation as both an elected official and city employee, certain confidentiality rights are in place.

The city, as the former employer of Mr. Kapitan, has certain obligations to keep his personal records confidential,” said city attorney Dean Frieders…

City of DeKalb again combined the roles of city employee and city clerk when Diane Wright was appointed in Kapitan’s place later that year, yet also kept her administrative job with the city (again, my emphasis):

With recent changes in City Hall staffing, a proposal has been developed to provide more efficient use of City personnel to perform administrative functions for the City, by utilizing the currently serving Acting City Clerk in a dual role as City Clerk and Executive Secretary.

These moves are problematic specifically because citizens of DeKalb have voted twice in the past 10 years to retain their municipal clerk as an elected position. While certainly “unique” and possibly even “efficient,” these elected official-city employee hybrids are not allowed under Illinois law. Elected officers are intended to serve only one master, and that’s the electorate. Read the rest of this entry

Here are four reasons to be suspicious of the “unlawful assemblies” ordinances coming up for a vote on Monday.

1. The “unlawful assemblies” and counterpart “unlawful weapons” ordinances came out of nowhere on the January 11. Council did not ask for them. There have been no discussions of why the PD needs another tool. The city attorney took on an extra-curricular activity of his own volition. That is not his role.

2. The ordinances were received and filed (first reading) on the 11th, and the draft has been changed since then — that’s right, the ordinances the council might vote into law on Monday are not the same ones that went through first reading. They’ve been privately changing them since the 11th. And considering what’s happened in the past (city voted on a different version of the contract with CivicPlus than was in the agenda packet) we actually can’t with certainty know what they are voting on Monday.

3. If council hadn’t canceled its second regular meeting for the month of December, this might have passed before the NIU students came back. Large assemblies in public spaces are, as we all know, something the students engage in more often than anyone else in DeKalb. Where’s the stake holder input?

4. Bizarrely, the city attorney used major cities across the country as “comparable communities” to DeKalb. That means he was not particularly tuned in to Illinois law, and it shows because the ordinances are not in fact in line with our own statutes, which would have been the best way to help ensure the ordinances pass Constitutional muster.

The fixation on major cities (the smallest of which is still 10 times larger than DeKalb) also suggests this is not really meant to be a local ordinance. Rather, the city attorney seems to have written the ordinances for the national stage. If so, we should let him go so he can pursue his dreams of stardom.

More:

Chronicle: “DeKalb Considering Unlawful Assembly Ordinances” Consider taking the poll in the far right column, too.

Letter to the Editor: “Assembly Laws Should go through City Commissions”

City of DeKalb: Regular meeting agenda for January 25, 2016 On the third page, find items G7 and G8. Click on an item to reach the backup material.

OMA and Real Estate Deals

City of DeKalb just paid for an appraisal of the old Ducky’s/Otto’s building at Lincoln and First. I haven’t heard a peep otherwise, but mindful of possible next steps I’ve done a little homework.

The Open Meetings Act (OMA) has a couple things to say about what a local government can do in closed session when it comes to real estate deals.

[2(c)](5) The purchase or lease of real property for the use of the public body, including meetings held for the purpose of discussing whether a particular parcel should be acquired.

(6) The setting of a price for sale or lease of property owned by the public body.

Exceptions to openness must be strictly construed, so we need to be clear on what’s not okay to talk about in closed session, and this isn’t always readily apparent (and/or has been more firmly established by case law instead of legislation). In this case, a publication from Ancel Glink called “304 Questions that Have Actual Answers” gives us examples. Read the rest of this entry