Clarification: This story has been updated to clarify The Public Access Counselor has determined the resolution does not require the issuance of a binding opinion, thus it is non-binding. Secondly, the PAC requested, but does not require the City Council to vote on releasing the recordings of the Dec. 5 closed session and portions of the Dec. 19 closed session.
The Illinois Attorney General’s office has ruled the Galesburg City Council violated the Open Meetings Act at two December 2022 meetings when it spent closed-door sessions discussing matters “not within the scope of the exceptions” cited for the closing of the meetings.
Ward 1 Alderman Bradley Hix and then Ward 7 Alderman Larry Cox filed Open Meetings Act violations complaints against the city in January, alleging topics discussed at the Dec. 5 and 19 executive sessions should not have been done in private.
Among the items the AG’s office found in violation of the Open Meetings Act were the discussion of creating an assistant city manager position and discussion of salary issues pertaining to employment positions rather than specific employees.
The determination, issued Friday by Public Access Bureau Chief Steve Silverman, requests the City Council to vote on releasing the recording of the Dec. 5 closed session and portions of the Dec. 19 closed session. There were no fines or penalties levied against the city.
The official statement from Silverman reads,
“In accordance with the conclusions expressed above, this office requests that the City Council remedy its improper closed session discussions by voting to make publicly available the verbatim recording of the December 5, 2022, closed session and the portions of the verbatim recording of the December 19, 2022, closed session that were not permissible under the section 2(c)(1) exception.
“The Public Access Counselor has determined that resolution of this matter does not require the issuance of a binding opinion. This file is closed.”
Although Hix and Cox alleged violations directly against Galesburg Mayor Peter Schwartzman and City Manager Gerald Smith in their complaints, the OMA provides that Requests for Review may be filed against public bodies, not individual public officials.
The ruling from the Illinois Attorney General’s Office was sent Friday to Hix, Cox, Schwartzman and attorney Paul Mangieri of Barash & Everett, LCC — the law firm that represents the city.
WGIL requested and received a copy of the ruling from the Office of Attorney General on Friday.
“This is a serious matter and one that I don’t take lightly.” – Galesburg Mayor Peter Schwartzman
Schwartzman confirmed to WGIL that he received the ruling from the AG office, but declined comment, pending consultation with the city’s legal counsel.
“I did receive and read the letter,” Schwartzman said. “I have already sent our legal counsel some follow up questions as the letter is written in legalese, not my speciality. I don’t have an opinion at this point to share. I await legal’s response and I should be able to get you more substantive answers next week.
“This is a serious matter and one that I don’t take lightly.”
On Jan. 23, the AG office sent copies of the Requests for Review to Schwartzman and asked for copies of the agendas, open and closed session minutes, and closed session verbatim recordings of the City Council’s Dec. 5 and Dec. 19 meetings. The AG office also requested a written response that identified the exceptions that the City Council cited as its basis for entering closed session, along with a detailed explanation of the applicability of the exceptions to any portions of the closed sessions that concerned the creation of an assistant city manager position, salaries for employees or employment positions, and/or a salary study.
Dec. 5 Meeting
The City Council stated during its Dec. 5 meeting it entered closed session “to address potential responses to an active EEOC (Equal Employment Opportunity Commission) complaint pending against the City. Some of the allegations of the EEOC compliant include allegations of racial and sexual discrimination and an overall hostile work environment.”
The response further explained that the EEOC may require the hiring of qualified minority applicants as a remedy for systemic discrimination and to prevent future discrimination. Therefore, the response stated, the City Council discussed the possible creation of either a Deputy Public Works Director position or a position that would encompass the role of both Public Works Director and Assistant City Manager upon the retirement of the individual who served as Public Works Director at the time; filling the new position with a qualified minority applicant was presented as a possible option for addressing the EEOC complaint.
Listen here: Was this city of Galesburg business suitable for executive session?
Based on the AG office’s review of the closed session verbatim recording, the upcoming retirement of the Public Works Director (Wayne Carl) was referenced in the context of a broader discussion about the possibility of creating a new employment position. The City Council did not substantively discuss the conduct, performance, qualifications or terms of employment of any specific employee or applicant. Instead, the discussion focused on possibly hiring a future minority applicant to fill a new employment position in response to the EEOC complaint. Because the discussion concerned the possibility of creating a new employment position rather than any specific employee or applicant for employment, section 2(c)(1) did not authorize the City Council to discuss that matter in closed session.
The City Council’s response to the AG office also suggested that section 2(c)(11) of OMA6 “may have authorized the closing of the open meeting as the closed session discussion involved discussion concerning ongoing litigation.”
The AG determination said it was unclear at the time of the Dec. 5 meeting that the EEOC complaint pending against the city had advanced to a stage that could be considered “litigation.”
Regardless, the AG office noted the City Council did not publicly cite the section 2(c)(11) exception before entering closed session as required by section 2a of OMA.
Dec. 19 Meeting
The City Council’s response to the AG stated that the City Council’s Dec. 19 closed session was prompted by concerns about employees receiving salary increases to compensate them for taking on additional responsibilities after former City Attorney Bradley Nolden resigned to take a position at Knox College.
The AG agreed that certain portions of the discussion focused on specific city employees and therefore were permissible to be discussed in closed session.
In response to Open Meetings Act probe: City of Galesburg says executive session was justified
Silverman wrote other portions of the discussion, however, involved unfilled positions and the possibility of creating positions without reference to any specific employees or applicants who could potentially fill the positions. In addition, the salary study that was the primary topic of discussion concerned a comprehensive review of the compensation of employees in various categories. Because those portions of the closed session did not include discussions of specific employees or applicants for employment and instead concerned employment positions and categories of employees, section 2(c)(1) of OMA did not authorize the City Council to hold the discussions in closed session.
Cox, who was defeated in the April 2 election by new Ward 7 alderman Steve Cheesman, said, he was not surprised by the findings of the Attorney General office against the city.
“I believed at the time of my filling that the city manager had said things in the private executive session of the City Council that should have been said during an open session for the public to hear,” Cox said.
“Only City Manager Smith and perhaps Mayor Schwartzman knew what was going to be discussed in those executive sessions. I hope, in the future Mr. Smith gets good legal advice before deciding what will be said during executive sessions.”
Hix added, “It’s a lesson learned. Going forward, it’s imperative that the mayor and city manager conduct city council meetings in strict accordance with the law.”
OMA Determination Letter by WGIL Radio on Scribd