OMADetermination Letter (non-binding)No violationClosed Sessions

Evanston Board of Ethics did not violate OMA by entering closed session on ethics jurisdiction

The Board of Ethics held a closed session to discuss its jurisdiction over specific ethics complaints.

Date issued: July 23, 2020
Request number(s): 62578
Public body: Evanston Board of Ethics
Statute(s): 5 ILCS 120/2(c)(4)
Exemption(s) discussed: 5 ILCS 120/2(c)(4) — Evidence to a quasi-adjudicative body 5 ILCS 120/2(c)(15) — Professional ethics/performance review by a licensing advisory body
Outcome: No violation found

Plain-language summary

A citizen alleged that a municipal ethics board improperly held closed session to consider its jurisdiction over ethics complaints. The PAC determined that the complaints and a complainant's argument constituted "evidence or testimony" properly considered in closed session under the Open Meetings Act's quasi-adjudicative exception, and that the board had issued, or committed to issue, written decisions setting out its reasoning as that exception requires. The board did not improperly enter closed session, provided the still-pending written decision is made public as promised.

Legal question

Whether the Evanston Board of Ethics violated the Open Meetings Act by entering closed session under section 2(c)(4) to discuss the jurisdiction of ethics complaints.

Holding

The Evanston Board of Ethics did not violate the Open Meetings Act by entering closed session to discuss the jurisdiction of ethics complaints.

Summary

The requester alleged that the Evanston Board of Ethics improperly entered closed session to discuss ethics complaint jurisdiction, but the PAC determined the Board did not violate the Open Meetings Act.

closed sessionethics boardjurisdictionOpen Meetings Act

Reading view (1,523 words)

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Dear d Ms. Wysocki:

This determination is issued pursuant to section 3.5(e) of the ©pen Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2018)). For the reasons explained below, |he Public Access Bureau concludes that the Evanston Board of Ethics (Board) did not violate (;)MA by entering closed session at its March 3, 2020, meeting under section 2(c)(4) of OMA (5 ILCS 120/2(c)(4) (West 2018), as amended by Public Acts 101-031, effective June 28, 2019; 101-459, effective August 23,2019). . \ • requested copies of the March 3, 2020, meeting agenda, minutes of both the' iopen and closed sessions, recordings of the open and closed sessions, and relevant portions of the City of Evanston' s Code of Ordinances (City Code). 2 On April 22, 2020, this office received the requested materials and the Board' s answer, a portion of which was provided confidentially. The Board sent a copy of its response to excluding any confidential materials. On May 1, 2020, this office received reply.

DETERMINATION

The Open Meetings Act provides that public agencies exist to aid in the conduct of the people' s business, and that the intent of the Act is to assure that agency actions be taken openly and that their deliberations be conducted openly." Gosnell v. Hogan, 179 Ill. App. 3d 161, 171 ( 5th Dist. 1989).

Section 2( a) of OMA ( 5 ILCS 120/ 2( a) ( West 2018), as amended by Public Acts 101- 031, effective June 28, 2019; 101- 459, effective August 23, 2019) provides that all meetings of a public body shall be open to the, public unless the subject of the meetingjfalls within one of the exceptions set out in section 2( c) of OMA. The section 2( c) exceptions are to be " strictly the advisory report is then sent to each member of the Board and to the complainant. Section 1. 10. 8( E) also requires the Board to consider the advisory report in executive session to determine whether it has jurisdiction over a complaint.

On March 3, 2020, the Board held a meeting to consider whether it had jurisdiction over the three complaints at issue. It appears that before the meeting, the members of the Board were given copies of the Law Department's advisory reports regarding jurisdiction, and each of the complainants were given the advisory report for their respective complaints. The Board' s draft meeting minutes show that during the open session portion of the meeting, the Board gave the complainants the opportunity to verbally supplement their written materials According to the minutes, Mr. Coyne stated that he would stand on his written complaint and submissions, while Ms. Witenberg made a motion to disqualify the Board's attorney and provided an argument to supplement her written complaint. Ms. Witenberg's co - complainant, Mr. Reid did not attend the March 3, 2020, meeting.

argues that the written complaints and Ms. Witenberg' s comments did not constitute " evidence or testimony" for purposes of section 2( c)( 4) of OMA. Black's Law Dictionary defines " evidence" as " something ( including testimony, documents, and tangible objects) that tends to prove or disprove the existence of an alleged fact; anything presented to the With respect to the remaining complaint, although the Board found it had jurisdiction, it has not yet issued a written decision of its determinative reasoning. However, the Board' s response to this office stated that the Board will issue a written opinion after hearing the merits of this complaint. Assuming that the opinion is made publicly available and sets forth the Board' s determinative reasoning on its jurisdictional finding, the Board did not improperly enter executive session at its March 3, 2020, meeting. Because this determination resolves this matter, this office need not consider whether the Board' s closed session discussion was also authorized by section 2( c)( 15) of OMA.

The Public Access Counselor has determined that resolution of this matter does not require the issuance of a binding opinion. This letter shall serve to close this matter. Please contact me at ( 877) 299- 3642 or the Chicago address on the first page of this lrer if you have.

any questions.

Very truly yours,

Notes from the original PDF (4)

• I . . I On April 13, 2020, this office received s Request for Review alleging that at its March 3, 2020, meeting, the Board improperly entered clo}ed session pursuant to the exceptions in sections 2( c )( 4) and 2( c )( 15) of OMA 1 to discuss the Bo$-d's jurisdiction over ethics complaints filed by Dan Coyne, Devon Reid, and Misty Witenberg. The Board combined and then bifurcated the identical complaints filed by Mr. Reid and ~s. Witenberg into two complaints. • • · I On April 15, 2020, this office sent a copy of the Request for Rview to the Board, and requested that it provide a written response to llegations. This : 1 office also
construed, extending only to subjects clearly within their scope." 5 ILCS 129/ 2( b) ( West 2018), as amended by Public Acts 101- 031, effective June 28, 2019; 101- 459, effective August 23, 2019; see also Henry v. Anderson, 356 Ill. App. 3d 952, 996- 97 ( 4th. Dist. 2005) ( strictly construing section 2( c)( 1) of OMA ( 5 ILCS 120/ 2( c)( 1) ( West 2002)). Section 2( c)( 4) Section 2( c)( 4) permits a public body to hold closed meetings Ito consider evidence or testimony presented in open hearing, or in closed hearing where specifically authorized by law, to a quasi - adjudicative body * * * provided that the body prepares and makes available for public inspection a written decision setting forth its dOterminative reasoning." ( Emphasis added.). As a preliminary measure, section 1. 10( 8)( D) of the City's Code of Ordinances Evanston, Ill. Code of Ordinances § 1. 10. 8( D) ( November 27, 2019)) require that the. City's Law Department issue a confidential written advisory report as to whether the Board has jurisdiction over the person and the misconduct alleged in an ethics complain. Under section 1. 10. 8( E) of the City Code ( Evanston, Ill. Code of Ordinances § 1. 10. 8( E) ( November 27, 2019)), 2The Evanston Code of Ordinances was revised between the time the complaints at issue were filed and when the March 2, 2020, meeting took place. As the Board is considering the allegations made in the complaints under the ordinance in effect at the time the complaints were filed, this office' s determination is based on that version of the ordinance.
senses and offered to prove the existence or nonexistence of a fact[.]". Black's Law Dictionary 11th ed. 2019), available at Westlaw BLACKS. As sworn statements, the complaints as well as any additional information submitted in support of the complaints, including Ms. Witenberg' s argument during the meeting, constitute " evidence or testimony" under section 2( c)( 4) of OMA. also argues that the Board should not have considered the advisory reports prepared by the Law Department because these reports were not presented inlopen hearing. Section 2( c)( 4) of OMA does not limit the consideration of matters in closed session to evidence or testimony presented in open hearing. Rather, section 2( c)( 4) allows for evidence or testimony presented in open hearing, or in closed hearing where specifically authorized by law." Emphasis added.) Section 1- 10- 8( E) of the City Code not only authorizes but requires the Board to " consider said [ advisory] report and the findings and conclusions therein in executive session[.]" Section 2( c)( 4) of OMA only authorizes a public body to consider evidence and testimony in closed session if it prepares and makes available for public inspection a " written decision setting forth its determinative reasoning." Before the Board' s open meeting on July 1, 2020, the Board issued and made publicly available its jurisdictional findings for two of the three complaints at issue in this matter. This office' s review of those findings confirms that they adequately set forth the Board' s determinative reasoning as required by section 2( c)( 4) of OMA.
GRACE ANGELOS Assistant Attorney General Public Access Bureau 62578 o proper 2c4 final action proper mun cc: Via electronic mail Ms. Jennifer Billingsley Chair City of Evanston Board .of Ethics 2100 Ridge Avenue Evanston, Illinois 60201 citymanagersoffice@cityofevanston. org