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. Read the rest of this entry

Mayor Rey opened the city’s strategic planning meeting last evening just after 5pm, only to be challenged from the audience by county board member and Preserve Our Neighborhoods founder Misty Haji-Sheikh. Haji-Sheikh raised a point of order about the legality of the meeting. The “retreat” meeting was billed as Committee of the Whole, which the online version of the Municipal Code says takes place on the second and fourth Mondays each month, and in council chambers. Coming on a Thursday and being held at NIU, last night’s meeting met neither requirement.

Or maybe it did. City attorney Dean Frieders — who by the way got to take off his lawyer hat last night and help develop public policy, while citizens in the audience had to wait four hours to speak — said the applicable ordinance has been changed and the city is complying with the new rule, but that it just hasn’t been posted to the city’s website yet.

Here’s what the Open Meetings Act says:

(5 ILCS 120/2.02) (from Ch. 102, par. 42.02)
Sec. 2.02. Public notice of all meetings, whether open or closed to the public, shall be given as follows:
(a) Every public body shall give public notice of the schedule of regular meetings at the beginning of each calendar or fiscal year and shall state the regular dates, times, and places of such meetings.

So even if the city is following changed meeting schedule rules — and I am by no means sure this is the case, until I can check a certified copy of the ordinance — it neglected to post the new ones in the Muni Code by the time the new fiscal year began July 1.

Once again, citizens are getting bad information despite good-faith attempts to look it up.

Anyway, the usual way to address a point of order is for the chair to make a ruling on whether a breach of the rules has occurred, and if so to resolve it.

Mayor Rey’s response to Misty Haji-Sheikh was to say, “Take it up with the Attorney General.”

In the excitement, the meeting proceeded without council’s having approved the agenda.

Newspaper coverage of the meeting is here.

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. Read the rest of this entry

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. Read the rest of this entry

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

    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

    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