Did Downers Grove Village Council Members violate the Open Meetings Act?

Illinois’ Open Meetings Act (OMA) is neither difficult to find online nor understand. It’s straightforward: With few exceptions, elected officials can’t deliberate public business in private.

“In order that the people shall be informed, the General Assembly finds and declares that it is the intent of this Act to ensure that the actions of public bodies be taken openly and that their deliberations be conducted openly. (5 ILCS 120/1) (from Ch. 102, par. 41)”

It would appear that most of the elected officials of the Village of Downers Grove have either not read the OMA or have decided to simply ignore it.

On July 23, 2013, Martin Tully, the Mayor of Downers Grove, sent an email from his personal account to Downers Grove Village Commissioner Greg Hose in which he attached a document from Commissioner Becky Rheintgen. “I know I have mentioned it but keep forgetting to share with the you the attached, which is the latest version from BR. In case it comes up tonight. FYI, I think the proposal is generally fine but the “comments” go too far,” Tully wrote to Hose.

Included in the email string was an email Rheintgen had sent to Village Manager David Fieldman, in which she wrote, “Attached is a draft of what I have been discussing with my colleagues regarding possible revisions to the fowl ordinance. … I have tried to capture the comments and opinions of my colleagues in the “other comments” section but imagine more would arise if the topic is discussed in the future.”

Rheintgen to Tully to Hose equals three, which is the magic number for the Open Meetings Act to kick in. OMA clearly states that a majority of a quorum (in the case of the 7 member Downers Grove Village Council, 4 is a quorum; 3 a majority) constitutes a public meeting.

The attachment contains “Suggestions of modifications of existing Fowl ordinance”, “Proposal to create a “Pilot” Chicken Program for properties less than 110 feet wide” and “Other Comments From Colleagues.”

Commissioners whose comments are included in the latter section include Commissioner Geoff Neustadt, Commissioner Bob Barnett and Commissioner David Olsen. The only council member absent from the electronic discussion is Commissioner Sean Durkin.

When contacted by phone, Commissioner Durkin said he had not participated in the email discussions because “I didn’t want to violate the Open Meetings Act. I don’t expect a back and forth dialogue on email. I want to talk about it on the dais or individually.”

“(5 ILCS 120/1.02) (from Ch. 102, par. 41.02) Sec. 1.02. For the purposes of this Act:
“Meeting” means any gathering, whether in person or by video or audio conference, telephone call, electronic means (such as, without limitation, electronic mail, electronic chat, and instant messaging), or other means of contemporaneous interactive communication, of a majority of a quorum of the members of a public body held for the purpose of discussing public business.”

It is hard to see how the Mayor and Commissioners are not discussing public business via electronic communication.

Mayor Tully strongly disagrees. “I’ll be happy to sit with Lisa Madigan and explain why this isn’t a violation,” he said in a phone conversation after this story was posted, noting that his professional expertise is in electronic communication and the law. “In my perspective, in no way, shape or form has there been a violation of the Open Meetings Act.”

Just as troubling is that three FOIAs requesting information have failed to provide the July 23, 2013 email that has been quoted above.

When contacted about this missing email, Commissioner Greg Hose provided the following statement, “I haven’t spoken to the Village Attorney specifically about this. I don’t know why it wasn’t provided in the FOIA, but I did provide all emails in my possession, including that one.”

On Friday, I filed another FOIA, stating that I already had the document in my possession and am awaiting the response. Today, I’m filingĀ a request with the Attorney General’s office for a review of the FOIAs and a review of this potential violation of the Open Meetings Act.

In 1913, three years before he was appointed to the Supreme Court, Louis Brandeis famously wrote, “Sunlight is said to be the best of disinfectants.” Brandeis was reflecting on politicians making deals without the voters’ knowledge, hiding graft and corruption behind the closed doors of smoke-filled back rooms. If the officials in Downers Grove are secretively discussing the most mundane of matters- a change in the chicken ordinance- how are voters to know what matters of more importance they are discussing via round robin emails?

In the years I’ve followed the workings of the local governmental entities, I’ve more than once heard the frustrated voices of residents at Village Council meetings. “You’ve already made up your minds,” they’ve complained to the Commissioners on the dais.

It appears they just might have been right.

***proposal fowl consensus latest_for ChicagoNow

Ed note: This story was updated to include a response from Mayor Martin Tully.

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