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AG opinion: City violated Open Meetings Act

  • Rick Hayes photoThe city's brain trust discusses business during a city council meeting. From left: attorney Tom Malkovich, Mayor Fred Kondritz and City Clerk Brook Craig.

    Rick Hayes photoThe city's brain trust discusses business during a city council meeting. From left: attorney Tom Malkovich, Mayor Fred Kondritz and City Clerk Brook Craig.

By Rick Hayes
Contributing Writer
Posted on 12/13/2017, 4:07 AM

For the second time in less than a year, the Illinois Attorney General's office has rendered an opinion that the city of Benton has violated provisions of the Open Meetings Act.

A determination letter from the Office of the Attorney General dated Dec. 7 states, "The Public Access Bureau concludes that the City of Benton City Council improperly discussed matters that were outside the scope of the exception -- to the general requirement that public bodies conduct business openly -- on which it relied to close a portion of its Oct. 23, 2017, meeting."

The office received a review request on Oct. 30 from citizen Julie Payne-Hubler alleging the council improperly discussed an airport wildlife fence project and a request for qualifications (RFQ) process for new airport engineering services in closed session.

On Nov. 2, state officials requested copies of the agenda, open and closed session minutes and closed session recordings, along with a written response on the alleged violation. The council denied the allegations in a written response Nov. 12, and Payne-Hubler replied in kind on Nov. 23, arguing "the council's response was inconsistent with its actions at this meeting."

The council denied Payne-Hubler's allegation that it discussed topics in closed session that were outside the scope of the section.

The council stated it went into executive session to discuss the employment of an engineer for its airport and to consider complaints/criticisms made by airport board member Tom Carter and City Commissioner Ronnie Baumgarte concerning the past performance of airport engineer Jim Brown. The council added that it also received application materials for the engineer position. According to the council, the construction of a wildlife fence at the airport could not be considered by its body until an engineer was employed because IDOT requires a municipality to have an engineer before it moves forward with such projects.

Payne-Hubler stated that it was announced the executive session would be to discuss/approve the wildlife fence project and discussion/approval of RFQ process for new airport engineering services.

It should be noted, the council took no action on matters discussed in executive session at the Oct. 23 meeting.

"Much of the closed session discussion focused on matters other than the specific employee who had served as airport engineer and specific candidates for the position," the Attorney General's office states in its opinion. "Section 2(c)(1) of OMA does not permit general discussion about an employment process, as opposed to the merits and conduct of individual employees. Although some of the other topics discussed by the Council may be dependent on the employment of an engineer, as the Council argues, the discussion of those topics did not center on specific employees as required (by the section)."

As a result, the attorney general's office concludes the council violated sections of the act by discussing unauthorized topics in the closed session. To remedy the violation, "this office asks the Council to vote to release closed session recording from its Oct. 23 meeting to the public, subject to redaction of the discrete portions in which the specific employee who had served as employee engineer and any specific candidates for the position are directly discussed," the opinion states.

City Attorney Tom Malkovich said Tuesday the city will comply with the recommendation from the attorney general's office to release portions of the executive session that should have been discussed in the public portion of the meeting. He indicated that action should take place at the council's next scheduled meeting Dec. 27.

The opinion was not discussed at Monday's council meeting.