City of Peru Committee of Whole violated OMA by unauthorized closed session discussions

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Dear Ms. Ajster and Ms. Piscia:

This determination letter is issued pursuant to section 3. 5( e) of the Open Meetings Act ( OMA) ( 5 ILCS 120/ 3. 5( e) ( West 2016)). For the reasons that follow, the Public Access Bureau concludes that the City of Peru ( City) City Council' s Committee of the Whole Committee) held unauthorized closed session discussions during its November 13, 2017, December 11, 2017, January 8, 2018, and January 22, 2018 meetings. The Public Access Bureau further concludes that the closed session minutes of those meetings do not contain sufficient information about the matters discussed.

On March 5, 2018. Ms. Ajster, of Ajster Law Office, submitted the above - captioned Request for Review alleging that during closed sessions on November 3, 2017, December 11, 2017, January 8, 2018, and January 22, 2018, the Committee improperly discussed the consolidation of, or sharing of services among, several police departments. On March 8, 2018, this office forwarded a copy of the Request for Review to the Committee and asked it to provide this office with copies of the agendas, open and closed session minutes ( in draft form if necessary), and verbatim recordings of the closed sessions of those meetings for this office' s review, together with a written response to Ms. Ajster' s allegations.

On March 20, 2018, the Committee provided this office with those materials and a written response in which it denied Ms. Ajster' s allegations concerning the December 11, 2017, and January 22, 2018, meetings. However, the Committee stated that it would be reviewing the November 13, 2017, and January 8, 2018, closed session materials for public release shortly, and would send Ms. Ajster copies as well. On March 21, 2018, this office sent a copy of the Committee' s response to Ms. Ajster; she did not reply. On April 4, 2018, the Committee confirmed to this office that it provided Ms. Ajster with copies of the November 13, 2017, and January 8, 2018, closed session verbatim recordings. Ms. Ajster confirmed her receipt during a telephone conversation with this office on April 13, 2018.

DETERMINATION

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).

Reasonable Diligence press conference to announced [ sic] that they were looking into the possibility of consolidation of these respective police departments and/ or the sharing of services. * * * This announcement came as a complete and total surprise to myself and other members of the public * * * because all the discussions regarding this possible consolidation and/ or sharing of services was conducted in secret in executive closed session meetings of the aforementioned City Councils. The first time that the general public heard of this possibility was at the press conference.° Although the Committee' s November 13, 2017, and December 11, 1 2018, meetings were held more than 60 days before Ms. Ajster submitted her Request for Review on March 5, 2018, it appears that she could not have learned material facts concerning the alleged violations at the time that they occurred despite using reasonable diligence because the possible violations occurred during closed session and the public had no indication that the Committee was discussing potential consolidation/ sharing of services. Further, she submitted her Request for Review to this office on March 5, 2018, which was within 60 days after she appears to have discovered the alleged violations on January 18, 2018. Because the Request for Review appears to have been submitted within the time limits set out in section 3. 5( a) of OMA, this office has authority to review Ms. Ajster' s allegations.

11, 2017, meeting indicate that the Committee entered closed session pursuant to section 2( c)( 5) as well as sections 2( c)( 6) and 2( c)( 23) of OMA ( 5 ILCS 120/2( c)( 6), ( c)( 23) ( West 2016), as amended by Public Acts 100-201, effective August 18, 2017; 100-465, effective August 31, 2017)? The open session minutes of the Committee' s January 8, 2018, meeting indicate that the Committee entered closed session pursuant to sections 2( c)( 5) and 2( c)( 6) of OMA. 4 Additionally, the open session minutes of the Committee' s January 22, 2018, meeting indicate that the Committee entered closed session pursuant to sections 2( c)( 1) ( 5 ILCS 120/2(c)( 1) ( West 2016), as amended by Public Acts 100- 201, effective August 18, 2017; 100- 465, effective August 31, 2017) as well as sections 2( c)( 5) and 2( c)( 6). 5 Sections 2( c)( 1), 2( c)( 5), 2( c)( 6), and 2( c)( 23) of OMA allow public bodies to enter into closed session to consider:

1) The appointment, employment, compensation, discipline, performance, or dismissal of specific employees of the public body or legal counsel for the public body, including hearing testimony 1 on a complaint lodged against an employee of the public body or against legal counsel for the public body to determine its validity.

5) The 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.

6) The setting of a price for sale or lease of property owned by the public body.

23) The operation by a municipality of a municipal utility or the operation of a municipal power agency or municipal natural gas agency when the discussion involves ( i) contracts relating to 3Peru Committee of the Whole, Meeting, December 11, 2017, Minutes 1.

the purchase, sale, or delivery of electricity or natural gas or (ii) the results or conclusions of load forecast studies.

In its response to this office, the Committee stated that it believes that the " session and recording are properly exempt and desires that the recording remain exempt" for both the December 11, 2017, and January 22, 2018 closed sessions. 6 The Committee did not, however, explain why it believes the topics it discussed were authorized by the exceptions on which it relied to close the meetings. As noted above, the Board did not dispute the allegation that the November 13, 2017, and January 8, 2018, closed session discussions were improper, and disclosed the verbatim recordings of those closed sessions to Ms. Ajster.

Based on this office' s confidential review of the closed session recordings for each of the four meetings, the Committee discussed topics outside the scope of the exceptions that the Committee relied on to close the meetings. The issue of consolidating several police departments into one, including feasibility, levels of support, and plans for solicit ng public funding, is not within the scope of any OMA exception. The Committee discussed this issue at length during closed sessions at its November 13, 2017, and January 8, 2018, meetings, and also intermittently during the December 11, 2017, closed session and briefly at the end of the January 22, 2018, closed session. Because a law enforcement agency clearly is nota municipal utility,' municipal power agency, or municipal natural gas agency, the section 2( c)( 23) exception is inapplicable. With respect to section 2( c)( 1), that exception "' is intended to perm t public bodies to candidly discuss the relative merits of individual employees, or the conduct of ndividual employees.'" 111. Att'y Gen. Pub. Acc. Op. No. 16- 013, issued December 23, 2016, at 5 ( quoting Ill. Att' y Gen. Pub. Acc. Op. No. 12- 011, issued July 11, 2012, at 3). The Attorney General has concluded that " the General Assembly did not intend to permit public bodies to hold general discussions concerning categories of employees in closed session pursuant to section 2(c)( 1)."

connection with the police cooperation issue, the section 2( c)( 5) exception does not encompass the significant portion of those discussions that centered on the cooperation itself, rather than just acquiring real estate. Ill. Att'y Gen. PAC Req. Rev. Ltrs. 36399, 36401, issued June 2, 2016, at 4 Section 2( c)( 5) is limited to discussions concerning the purchase of property for the use of the public body[.]" ( Emphasis in original)). Lastly, 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. Apart from a brief portion of the January 8, 2018, closed session in which the Board directly discussed setting a price for the sale of City property. section 2( c)( 6) did not authorize the remaining portions of that closed session or the other closed sessions at issue in this matter.

Accordingly, this office concludes that the Committee violated OMA by discussing unauthorized topics in closed session during its November 13, 2017, December 11, 2017, January 8, 2018, and January 22, 2018, meetings. To remedy this violation this office asks that the Committee vote to release the relevant portions of the December 11, 2017, and January 22, 2018, closed session recordings to the public, except for the discrete portion of the Committee' s discussions concerning the purchase of real estate which was authorized by section 2( c)( 5). Because the Committee already has disclosed the verbatim recordings oflthe November 13, 2017, and January 8, 2018, closed sessions, no additional remedial action is required.

Bureau, on the other hand, has construed the provision and concluded that " brief, very general minutes are insufficient to satisfy the requirements of section 2. 06( a) of OMA." I 1. Att' y Gen. PAC Req. Rev. Ltr. 40309, issued May 20, 2016, at 4.

Under the plain language of section 2. 06( a)( 3) of OMA, the Committee was required to include in the closed session minutes of its November 13, 2017, December 11, 2017, January 8, 2018, and January 22, 2018, meetings a summary of all matters proposed, deliberated, or decided during those closed sessions. Yet, the closed session minutes of all four meetings contain just a few general, vague sentences concerning the Committee' s closed session discussions. The sentences are essentially the text of the closed session exceptions themselves. Minutes need not contain the level of detail of a transcript, but section 2.06( a) expressly requires a public body to keep minutes that summarize discussions of all matters proposed) deliberated, or decided. Rather than providing such a summary, the Board' s December 11, 2017 j and January 22, 2018. minutes merely identify the topics of its closed session discussions. Because those minutes fail to provide a sufficient summary of all matters proposed, deliberated, or decided, this office concludes that the Committee violated section 2. 06( a) of OMA. To remedy this matter, this office requests that the Committee revise the closed session minutes for the fiur meetings in question with the proper level of detail as required by OMA.

The Public Access Counselor has determined that resolution of this matter does nM require the issuance of a binding opinion. Please contact me at ( 312) 793- 0865 or the Chicago address listed on the first page of this letter if you have questions. This correspondence