Sleepy Hollow Board violated OMA by exceeding closed-session scope on cell tower lease price

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Dear and Mr. Pickett:

continued to hold improper closed sessions concerning the cell tower since the September 6, 2016, meeting.

On March 17, 2017, this office forwarded a copy of the Request for Review to the Board and asked it to provide, for this office's confidential review, copies of the closed session minutes and closed session verbatim recordings from its March 21, 2016, and September 6, 2016, meetings, as well as from any other meetings since September 6, 2016, wherein the proposed cell tower was discussed pursuant to section 2( c)( 6) of OMA. This office also requested a written response to allegations. On April 7, 2017, this office received those materials. The written response consisted of a letter from the Village President, Mr.

Stephan Pickett, and an unsigned, undated " Statement in Support of the Village's Response"

setting out legal analysis. On April 19, 2017, submitted a reply.

On May 9, 2017, was sworn in as a Village Trustee.' On July 3, 2017, an attorney in the Public Access Bureau contacted by e- mail to verify whether he had since received any further closed session materials concerning the proposed cell tower. On July 5, 2017, responded that the Board had voted to release relevant closed session minutes on July 3, 2017, but that he had not received them.

DETERMINATION

As an initial matter, Mr. Merkel' s allegation that the Board violated its own Village Code is not subject to review by the Public Access Bureau because this office' s authority to resolve disputes is limited to alleged violations of FOIA and OMA. See 15 ILCS 205/ 7( c)( 3)

West 2016). Accordingly, this determination is limited to OMA allegations.

OMA is intended " to ensure that the actions of public bodies be taken openly and that their deliberations be conducted openly." 5 ILCS 120/ 1 ( West 2016). Section 2( a) of OMA 5 ILCS 120/ 2( a) ( West 2016)) provides that "[ a] 11 meetings of public bodies shall be open to the public unless excepted in subsection ( c) and closed in accordance with Section 2a." Correspondingly, section 2a of OMA ( 5 ILCS 120/ 2a ( West 2016)) provides:

A] citation to the specific exception contained in Section 2 of this Act which authorizes the closing of the meeting to the public shall be publicly disclosed at the time of the vote and shall be recorded and entered into the minutes of the meeting. * * * Erin Sauder, Sleepy Hollow trustee wants access to executive session records, The Courier -News June 19, 2017, 11: 01 PM), http:// www. chicagotribune. com/ suburbs/ elgin- courier- news/ news/ ct- ecn- sleepy- hollow- executive- session- st- 0621- 20170619- story. html.

Only topics specified in the vote to close under this Section may be considered during the closed meeting.

The exceptions " are in derogation of the requirement that public bodies meet in the open, and therefore, the exceptions are to be strictly construed, extending only to subjects clearly within their scope." ( Emphasis added.) 5 ILCS 120/ 2( b) ( West 2016).

Section 2( c)( 6) of OMA allows public bodies to enter into closed session to consider "[ t] he setting of a price for sale or lease of property owned by the public body." Emphasis added.) The clear and unambiguous language of section 2(c)( 6) of OMA, which must be strictly construed, does not allow a public body to discuss the sale or lease of public property in closed session other than to set a price. If the General Assembly had intended to allow closed meetings to discuss general issues concerning the sale or lease of public property, it would have written such an exception into OMA, as have other jurisdictions. See, e.g., section 551. 072 of the Texas Open Meetings Act ( Tex. Gov't Code Ann. § 551. 072 ( West 2016) (" A governmental body may conduct a closed meeting to deliberate the purchase, exchange, lease, or value of real property if deliberation in an open meeting would have a detrimental effect on the position of the governmental body in negotiations with a third person.")). Indeed, section 2( c)( 5) of OMA ( 5 ILCS 12012( c)( 5) ( West 2016)), which allows a public body to enter closed session to discuss t] he purchase or lease of real property for the use of the public body, including meetings held for the purpose of discussing whether a particular parcel should be acquired[,]" directly contrasts with the significantly narrower scope of section 2( c)( 6). While section 2( c)( 5) of OMA allows general closed session discussions concerning the purchase or lease of real property for the use of the public body, neither it, nor section 2( c)( 6), authorizes general discussions regarding the sale or lease of public property. See I11. Att'y Gen. Pub. Acc. Op. No. 15- 003, issued March 19, 2015, at 5 ( section 2( c)( 6) of OMA does " not extend to the discussion of general issues concerning the disposal of publicly -owned property.").

In its response to this office, the Board acknowledged that it discussed the proposed cell tower in closed session under section 2( c)( 6) of OMA during its March 21, 2016, September 6, 2016, January 16, 2017, February 6, 2017, and February 20, 2017, and March 20, 2017, 2 meetings, and it provided this office with copies of the closed session minutes and closed session verbatim recordings from those meetings. The Board stated that "those portions" of the March 21, 2016, and September 26, 2016, closed session minutes " that did not relate specifically and exclusively to the price to be set by the Village for the proposed lease" had been released following the Board's most recent semi- annual review of its closed session minutes on December 5, 2016, and that the Board would consider whether to disclose the more recent closed session minutes during its next semi- annual review at the end of June 2017.3 With respect to whether the Board' s closed session discussions were authorized under section 2( c)( 6) of OMA, the Board asserted:

The record of the executive session held on March 21, 2016 shows that not only was pricing for the proposed lease specifically discussed, but also many of the factors that may affect such pricing were presented. The meeting was attended by the prospective lessee. During the closed session, the Board was informed of the total cost of the project, collocations anticipated for the tower, and the offer of the applicant for pricing on the rent, the rent escalator and the collocation fees, all factors which could go into the pricing decision.

After the March 21, 2016 closed session, the Board of Trustees conducted five ( 5) subsequent closed sessions for discussion of setting a price for such lease[.] 141 The Board did not provide further information concerning those five subsequent closed sessions. Instead, the Board cited Board of Education School District 67 v. Sikorski, 214 I11. App. 3d 945 1st Dist. 1991) for the proposition that " it is improper to declare a public body' s decision null and void when its initial decision, although reached during an improper executive session, has been subsequently ratified by additional public meetings. i5 In Sikorski, the Illinois Appellate Court held that a board had held an unauthorized closed session discussion in which it voted to delay a property sale, but the court declined to void the ensuing sales contract because the board' s " subsequent actions, taken during public meetings, ratified and cured" the board' s improper closed session decision to delay the sale. Sikorski, 214 Ill. App. 3d at 952.

Analogizing this matter to Sikorski, the Board depicted its open session discussions concerning the proposed cell tower as follows:

3Letter from Stephan Pickett, Village President, Village of Sleepy Hollow, to Joshua Jones Supervising Attorney, Office of the Attorney General ( April 4, 2017), at 1.

The March 21, 2016 meeting * * * included a wide-ranging presentation of elements of the proposed lease, and the applicant was allowed to be present. This was so as to inform the Board members of the various elements of a lease agreement which might affect its decision regarding setting its price for any such lease. That [ meeting] occurred one year before final action was taken by the Board of Trustees on the price of the lease, and approval of an Option and Lease Agreement with the applicant.

After the March 21, 2016, meeting, the Board] had not less than 10 open sessions at which the matter of a lease for purposes of erecting a telecommunication tower was discussed, as well. Prior to the March, 2016 date, there had been one open session November 4, 2015) conducted as a special meeting for the sole purpose of allowing comment on the proposal to lease a site for a telecommunications tower on public property ( the Village hall site), including pricing of the lease. Finally, there were five ( 5) additional meetings of the Board at which citizens commented ( in general) on the proposal to lease a site for a telecommunications tower on public property in the Village. l61 The Board argued that " subsequent meetings of the Board * * * served to cure any violation" of OMA with respect to any improper closed session discussions concerning the cell tower, and thus that "[ t] he final action taken by the * * * Board * * * to set a price for and to approve a lease of space * * * for a telecommunications tower on Village property should not be undone." 7 In reply, questioned whether the response this office received was truly from the Board or instead from Village President Pickett with assistance from an attorney, as two trustees had told him they were unaware of the matter. 8 Additionally, he stated: President Pickett and the author of the Statement [ in Support of the Village's Response] seem to suggest they can speak in executive session in violation of the Open Meetings Act and make it right by sharing some of the information later in open session. This is clearly not the intent of the Open Meetings Act." 9 This office's review of the closed session materials showed that the Board exceeded the scope of section 2( c)( 6) to varying degrees during the closed session portions of its March 21, 2016, September 6, 2016, January 16, 2017, February 6, 2017, and February 20, 2017, meetings. During closed session on March 21, 2016, representatives of National Wireless Ventures, LLC ( National) - the company proposing to lease land from the Village for a cell tower - stated the price the company could offer for the lease, but a lengthy discussion of logistics lacking a direct relation to the lease price ensued. The portions of the discussion concerning pricing did not so much concern the setting of a price as they did hearing National' s offer. The September 6, 2016, closed session contained scarce discussion of the price for the lease, but significant discussion of other matters pertaining to the cell tower. Similarly, the January 16, 2017, closed session involved substantial discussion concerning the cell tower but little to no discussion pertaining to setting a lease price. In contrast, the Board did work on setting a price in closed session on February 6, 2017, such as by discussing comparables and the pricing structure acceptable for the Village. However, the discussion strayed into siting logistics and matters tangential to the lease proposal at hand. Finally, during closed session on February 20, 2017, the Board touched on pricing but also discussed unrelated considerations pertaining to the cell tower. By failing to limit its closed session discussions on these five dates to the topic authorized by section 2( c)( 6) of OMA, the Board violated section 2( a) of OMA.

Unlike in Sikorski, here there is no allegation that the Board improperly took final action in closed session. Accordingly, the Board' s claim of having ratified and cured its improper closed session discussions is misplaced, but at the same time there is no cause for this office to conclude that any agreement between the Village and National is void. Rather, as alluded to in his reply, no subsequent open session discussion can fully remedy improper closed session discussions, because the public misses out on deliberations to which it should have had access at the time. Nonetheless, the remedy that is available, and that this office requests, is for the Board to provide with10 and publicly disclose the portions of its March 21, 2016, September 6, 2016, January 16, 2017, February 6, 2017, and February 20, 2017, closed session minutes and closed session verbatim recordings that do not specifically involve the setting of a price for the lease of land for the cell tower. This office also cautions the Board to conduct its future meetings in full compliance with OMA.

The Public Access Counselor has determined that resolution of this matter does not require the issuance of a binding opinion. This file is closed. If you have any questions, please contact me at ( 312) 814- 8413.

Very truly yours, JOSHUA M. JONES Supervising Attorney Public Access Bureau