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HomeMy WebLinkAbout10_17_05_sm CITY COUNCIL October 17, 2005 PRESENT: Alderman Bernstein Alderman Hansen Alderman Holmes Alderman Wynne Alderman Tisdahl A Quorum was present. NOT PRESENT AT ROLL CALL: Aldermen Moran, Rainey, Jean-Baptiste ABSENT: Alderman Wollin PRESIDING: Mayor Lorraine H. Morton A SPECIAL MEETING of the City Council was called to order by Mayor Morton on Monday, October 17, 2005, at 7:00 p.m. in the Aldermanic Library for the purpose of hearing a Motion to Dismiss an Amended Election Contest Petition. Alderman Wynne moved that Council convene into Executive Session for the purpose of discussing matters related to litigation and other issues pursuant to 5ILCS Section 120/2 (c) (3), (4) and (11). Seconded by Alderman Bernstein. (3) The selection of a person to fill a public office, as defined in this Act, including a vacancy in a public office, when the public body is given power to appoint under law or ordinance, or the discipline, performance or removal of the occupant of a public office, when the public body is given power to remove the occupant under law or ordinance. (4) Evidence or testimony presented in open hearing, or in closed hearing where specifically authorized by law, to a quasi- adjudicative body, as defined in this Act, provided that the body prepares and makes available for public inspection a written decision setting forth its determinative reasoning. (11) Litigation, when an action against, affecting or on behalf of the particular public body has been filed and is pending before a court of administrative tribunal, or when the public body finds that an action is probable or imminent, in which case the basis for the finding shall be recorded and entered into the minutes of the closed meeting. Roll call. Voting aye – Bernstein, Holmes, Tisdahl, Hansen,Wynne. Voting nay – none. Motion carried (5-0). At 7:28 p.m. Alderman Bernstein moved that Council reconvene into open session. Seconded by Alderman Moran. Motion carried unanimously. Mayor Morton reconvened the City Council meeting at 7:39 p.m. in the Council Chamber and introduced Jack Siegel, Corporation Counsel for the City. City Clerk Morris called the roll. Present: Aldermen Bernstein, Holmes, Moran, Tisdahl, Rainey, Hansen, Wollin, Jean- Baptiste, Wynne. (9-0). A quorum was present. Mr. Siegel asked that Council approve rules for the proceedings that evening that had been considered in closed session. The arguments would be no more than 30 minutes and the moving party would go first, that would be counsel for Alderman Wollin. If they wish to reserve any part of the 30 minutes for rebuttal, that would be appropriate. The Mayor will preside at the hearing and, as presiding officer, will not vote unless there is a tie. The parties through their counsel will confine themselves to the issue of whether the amended petition states a cause of action on which relief should be granted. The City Council must determine whether, in fact, all the allegations or a number of the allegations, if proven, would result in setting aside the election of Alderman Wollin. City Council must act in an unbiased and unprejudiced manner. If, for any reason a Council member feels unable to pass fairly upon the issues, such member should recuse him/herself. Following the presentation of arguments, City Council may choose to deliberate in either closed or open session. He believed that provisions of the Open Meetings Act would permit a closed session for deliberations if the majority of City Council so voted. The matter can be deliberated in open session and the final decision must be made by 2 October 17, 2005 a vote of the majority of Council members participating in the open meeting. The City Council need not make a determination that evening, and may choose to continue the matter for deliberation and decision on a subsequent date. This City Council’s decision should be memorialized in a written order. Alderman Bernstein moved to accept the rules. Seconded by Alderman Wynne. Motion carried unanimously. Mr. Means, attorney for Ms. Fiske, stated that matters had come up that weekend, which were sent to Mr. Siegel on Friday and Monday, that raised a question about pre-judging the case and he asked to deal with it. Mr. Siegel would not act based upon an e-mail. Mr. Means moved that the City Council disclose tape recordings of all executive sessions that are related to this case from June 14, 2005 up to and including that day. They believed the Open Meetings Act does not permit closed sessions except after hearing evidence and arguments on the law and does not permit closed sessions to discuss rules. They are concerned because they understood that Alderman Tisdahl had announced her preference for how this case ought to turn out and be heard, whether true or not, and that she wrote a check to Cheryl Wollin’s defense fund at a closed session. They believed closed sessions have occurred. According to The Daily Northwestern from that day, City Clerk Morris is quoted as admitting closed sessions occurred, as did Alderman Bernstein. They believed to determine whether the City should go ahead that they should be assured that people have not made up their mind in advance and they will be able, depending on what the evidence is and legal arguments are, rule either way. They believed it is a violation of the Open Meetings Act to have any closed sessions and are entitled to the tapes. Mr. Siegel stated that counsel for Alderman Wollin could respond; noted a lawsuit was filed naming City of Evanston as defendant with Mr. Means representing the plaintiff. As he understood the Open Meetings Act, they are entitled to discuss pending litigation in closed session, which just happened. Mr. Means agreed it would have been okay if he was talking about a closed session before June 14. Mr. Siegel said he has not always agreed with everything printed in The Daily Northwestern. Mr. Siegel asked Alderman Tisdahl if she wished to make a statement. All aldermen have taken an oath to support the Constitution, laws of the State of Illinois and to faithfully exercise the duties of the office which include, in this instance, sitting as a hearing body in an election contest. Alderman Tisdahl stated that she could fairly and without prejudice make a ruling in this case. Mayor Morton asked if any aldermen wished to recuse him or herself? The Mayor stated that anything that goes on in closed session is supposed to stay there and was disturbed that someone gave Mr. Means information from a closed session. Mr. Means said that according to a 1991 Attorney General’s opinion, a whistleblower is protected if he/she speaks of something that happened in a closed session. Alderman Tisdahl said that before the court ruled that the City Council was to act on this case, she gave Alderman Wollin a $100 check based upon her knowledge of how much the campaign cost and how much lawsuits cost. This was not based upon any of the facts of the case because she did not have the case before her at that time. The check was returned as soon as the court ruled that City Council should judge this case. Alderman Rainey read an article in The Daily Northwestern that quoted the City Clerk as saying the Council would deliberate, then go into closed session to make a determination. Alderman Rainey said that Council never said they would go into closed session after hearing this case. So it was either a misunderstanding by the City Clerk or, more likely, a misrepresentation by The Daily Northwestern. Former alderman Stephen Engelman, who represents Alderman Wollin, pointed out that Mr. Mean’s motion about releasing executive session tapes had nothing to do with what they were there for, which was to determine whether or not the complaint should be dismissed. The only issue before Council is allegations in the complaint and a motion to dismiss and responses thereto, and whether Council members are capable of hearing those arguments. All Council members have said that they were capable of hearing those arguments. He suggested that Council deny the motion to release the tapes and move on to what they were there for. Alderman Bernstein stated that he, too, had given a check to Ms. Wollin; because he thought everyone is entitled to their 3 October 17, 2005 day in court. Had Ms. Fiske asked, he would have tendered the same to her. Ms. Wollin returned the check. He had no problem deciding the facts on the law. Alderman Holmes stated that she, too, had made a donation to Alderman Wollin, which was returned after the court decision that Council would hear this case. Alderman Moran also had given funds to Alderman Wollin. Alderman Rainey moved to deny the motion to release the tapes; thought anything done in executive sessions was completely legal and within their rights. Alderman Jean-Baptiste tried to understand whether Mr. Means was suggesting release of the tapes as a pre-condition to move forward and was his position that if the tapes are not released, then he would not go forward? Mr. Means stated they should not go forward unless the tapes were released; and they ought to have time to litigate the question because they believe they are entitled to those dates; that closed sessions after June 14 about this case were improper. They don’t know what was said, but know that they were improper. Alderman Jean-Baptiste asked how he knew that they occurred and how he knew that they were improper? Ultimately, he was asking Council, once they hear the motion, to make a decision as to move forward on this case. If Mr. Means believed Council made comments that were for/against client, then what happens? Suppose Mr. Means says that Council cannot hear this matter, do they then return to the Circuit Court? Mr. Means said that would be the appropriate way to enforce the Open Meetings Act. Mr. Means said his motion was to disclose the tapes because he knew of no circumstances to justify holding closed sessions. Alderman Jean-Baptiste asked to what end? Was he seeking comments to get this case back to the Circuit Court? If the motion is denied and they are granted a continuance to seek relief with the Circuit Court, that is what they would do. If they are not granted a hearing, the motion denied and not granted a continuance and the case goes ahead, they would seek a Writ of Mandamus in review of this Council’s decision. Mr. Siegel stated that there is a specific method of enforcement of the Open Meetings Act available to Mr. Means. Has he identified any time that a specific violation of the Open Meetings Act occurred? He believed that as soon as an election contest petition was filed, it was litigation affecting a public body, which under specific provisions of the Open Meetings Act, allows closed sessions. He was not familiar with any sessions where there was substantive discussion of the substance of that election contest petition except when filed initially with the Circuit Court which clearly allowed discussion in closed session. Mr. Means said a violation happened just an hour ago. Mr. Siegel said there was a closed session based upon the following sections of the Open Meetings Act: 5 ILCS 1-20/ 2- (3), (4), and (11). He explained those sections of the Open Meetings Act provide the following circumstances in which a closed session is permitted: “Dealing with the removal of an occupant of public office,” which is what this petition is about. Secondly, litigation affecting the public body. Third, evidence or testimony in a hearing by a quasi-adjudicative body. He believed that Council is acting as a quasi-adjudicative body. He firmly believed that the Open Meetings Act permits Council to meet in closed session to decide on rules to proceed. Mr. Means disagreed and, if appropriate, would ask the court to address that. Mr. Engelman said that Mr. Means sees something wrong with the left hand and thus believes the right hand should be punished. Whether or not this Council should or not have gone into closed session to discuss whatever it discussed does not taint whether or not this Council can act as the deliberative body on the subject motion to dismiss. Even if somebody in a closed session said at some point in time that they were feeling one way or another does not mean that they cannot keep an open and fair mind and hear this case because this is not an evidentiary hearing. This is a motion to dismiss. This Council is not taking a series of facts. The motion to dismiss is based upon pleadings and the pleadings were filed when Council first got this case, which was subsequently amended. Aldermen have all said that they will render their decision tonight based upon what they hear and what is presented. Whether or not the Open Meetings Act was violated is not an issue that prevents this Council from hearing the motion to dismiss. Alderman Hansen understood that if this Council was to deny or to grant Mr. Mean’s motion to release the tapes, he would be unprepared to respond to the motion to dismiss. Mr. Means said that was not true. He was prepared to argue but whether or not he would was another question. Alderman Jean-Baptiste was not sure that Mr. Mean’s motion got to what he wanted done. He started out speaking about Alderman Tisdahl and other aldermen who admitted they had given money to Alderman Wollin. Was not his position 4 October 17, 2005 that this Council was not fit to render a fair hearing? It did not matter whether they denied or agreed to his request on the tapes, the fact is that Council members had contributed to Alderman Wollin. It seemed his motion should be to recuse the entire Council from hearing this matter and seek to return the matter to the Circuit Court. No matter what is done about whether the Open Meetings Act was violated, that would not change Mean’s position. He suggested if Mr. Means thought that Council could not be objective in rendering an opinion, then Means should make a motion stating that and they ought not go through this process. Mr. Means reiterated that a violation of the Open Meetings Act had occurred, claiming there is evidence as to what happened in closed sessions. They want to see that evidence and wherever it goes. However, they also have statements from Council members that evening and his next motion will be that those Council members who said they offered funds for the defense fund should recuse themselves. The first motion is to disclose the substance of the proceedings which were in closed session. He believed that Mr. Siegel could be wrong. When the Open Meetings Act talks about litigation, it is not litigation that is before the Council in which the Council is a judge. It is litigation in which the City Council is a party. The Council is not a party in the federal case. Members of the Canvassing Board were parties only because they are needed for jurisdictional purposes. There is no relief sought against them but to effectuate whatever ruling comes. They believed the only closed session they could have under the Open Meetings Act is after hearing evidence and arguments to deliberate then come into open session to announce the ruling and the reasons why. There have been no presentations made to Council, therefore, they believe no closed sessions were appropriate and it was not appropriate to adopt rules. However, Council is sitting as judges and it is their authority to decide the motions. Alderman Jean-Baptiste noted that Council did not choose to hear this case. Mr. Siegel stated the Council was directed by the Circuit Court of Cook County to hear it. Alderman Jean-Baptiste said that Council would be held in contempt if they decided to send it back to the Court. Does not Council stand as an equal to the Court if the case comes to them? Mr. Siegel stated, rightfully or wrongfully, what the Court held was that the City Council was the only body that had jurisdiction to hear the election contest. Mr. Siegel thought to send this back would be unavailing and the Court would take the position that they took before. Judge Bertucci said he did not have authority to hear it because the statute is fairly specific. The City’s position was because other issues were raised, the City filed a petition because of those issues that the Court should take jurisdiction of all these issues rather than piecemeal them, but the Court disagreed. Mr. Means thought Council members could recuse themselves. Mr. Siegel said they were all aware of “rule by necessity.” He was not convinced that any Council member had pre-judged from their statements and assumed they are honorable people and took an oath to support the laws of Illinois. To protect his record Mr. Means said he had to make the motion. Mr. Siegel said if enough people recuse themselves this could not go forward. All lawyers know there is such a thing even if there is a conflict, “the rule by necessity” if a public body is required to act on something, even if everybody is prejudiced they still have to act upon it. He did not think anybody here was prejudiced and they were waiting to hear the arguments. Jeff Smith, attorney for Alderman Wollin, addressed the procedural aspect of the motion Mr. Means made, which was that neither of them should delay the hearing scheduled. If he has an Open Meetings Act request, he can go ahead and make it. This is analogous to being in front of a judge with the belief that the judge could not be fair, they would make a motion for recusal, the judge hears it and accepts or denies it and they go on. They don’t stop the proceedings and go to the Appellate Court. It was then after 8:00 p.m.; they have a straightforward motion based on the law and this body should rule and move on. Alderman Wynne asked if Mr. Means was saying, that if this matter was ever discussed in closed session that alone is the problem and his remedy was, if that occurred, that they cannot hear this. Mr. Means said it depends upon what is in the tapes and that the remedy for violation is disclosure. If the disclosure shows nothing, they go on. Mr. Siegel said that there is a statutory penalty for violating the Open Meetings Act, which is enforced by the State’s Attorney. Mr. Siegel thought that what the aldermen were asking was, whether Mean’s position is because he alleges, at a point in time, there may have been a violation of the Open Meetings Act. Therefore, Council is foreclosed from proceeding with this hearing. Mr. Means said no. Alderman Moran said the situation was presented where he made a contribution to Alderman Wollin’s defense fund, which was not accepted, it was felt that this Council would not be deciding this matter. He understood this action was filed in the Circuit Court, then amended and filed in a federal court. As the case has progressed, he found himself in a significantly different position than he was then. He has done everything he could under the circumstances to examine all the pleadings with respect to the motion to dismiss and the complaint with the notion that it was incumbent upon him to do everything he could to render a fair hearing and a decision and proceeded on that basis. He had a particular concern, 5 October 17, 2005 given the changes in circumstances, that it could be looked upon, that perhaps he could not render a fair decision in this proceeding. His concern was sufficiently great that he did not want to decide this and based upon that recused himself. City Clerk Morris read the motion again. Alderman Rainey moved to deny the motion to release the tapes. Alderman Jean-Baptiste asked to recuse himself from the entire proceeding; felt the allegation made that Council members may or may not have discussed this in a closed session and some made donations to Alderman Wollin early on poisoned the atmosphere. Everybody who hears the spin that this Council was already prejudiced against the complainant, could not rule fairly; allege contributions and had discussions in closed session, that a whistleblower had shared information about what may have been said or done in closed session. Under the circumstances, a Circuit Court judge ought to consider these factors. He suggested the entire Council recuse itself from hearing this and if the Circuit Court wants to respond to that and say they must hear it, then Council would reconsider this. Council members are not judges with litigants coming before them. They are aldermen that deal with people on a daily basis on issues of trust, service and leadership of the City. Alderman Rainey withdrew the motion and recused herself, not because she felt any partiality to either individual but she was being tainted by the argument. She had looked forward to an academic and informative discussion and instead she was getting more disgusted and the less fair she felt. Mr. Siegel advised the Mayor to rule on Mr. Mean’s motion. Mr. Means stated it was the aldermen who should rule on the motion not the presiding officer. Mr. Siegel stated that if no one made a motion to either accept or deny Mr. Mean’s motion, he directed the presiding officer to rule because they could not go forward with a pending motion unless a decision was made. Aldermen Bernstein, Tisdahl and Holmes recused themselves. Alderman Wynne stated they no longer had a quorum. Mayor Morton declared the meeting adjourned at 8:24 p.m. At 8:25 p.m. Alderman Bernstein moved that Council convene into Closed Session to discuss a matter of litigation pursuant to 5 ILCS 120/2 (c)(11). Seconded by Alderman Tisdahl. Roll call. Voting aye – Bernstein, Holmes, Moran, Tisdahl, Rainey, Hansen, Wollin, Jean-Baptiste, Wynne. Voting nay – none. Motion carried (9-0). (11) Litigation, when an action against, affecting or on behalf of the particular public body has been filed and is pending before a court of administrative tribunal, or when the public body finds that an action is probable or imminent, in which case the basis for the finding shall be recorded and entered into the minutes of the closed meeting. There being no further business to come before the Council, Mayor Morton asked for a motion to adjourn and the Council so moved at 8:50 p.m. Mary P. Morris, City Clerk