OFFICE OF THE ATTORNEY

Transcription

1 1001 Fact Main Carhnndnla tai ex cnn conn -.-. v.. e cnn a.. n,... OFFICE OF THE ATTORNEY STATE OF ILLINOIS GENERAL Lisa Madigan ATTORNEY GENERAL The Honorable Town Clerk St. Clair Township 107 Service Street Brenda Reed Swansea, Illinois brenda@stclairtownship. com Dear Ms. Reed: RE: OMA Requests for Review 2015 PAC 33808; 33809; 33884; 33886; 33887; 33888; 33889; 33890; 33891; 33892; 33893; 33895; 33896; 33898; 33899; 33903; 33968; 33969; 33970; 34028; 34170; 34171; 34172; This determination letter is issued pursuant to section 3. 5( e) of the Open Meetings Act ( OMA) ( 5 ILCS 120/ 3. 5( e) ( West 2015 Supp.)). Because the Public Access Bureau received 24 Requests for Review alleging the same violation of OMA, this office has consolidated those matters in this determination. For the reasons that follow, the Public Access Bureau concludes that the St. Clair Township Board of Trustees ( Board) did not make its February 24, 2015, meeting reasonably accessible to the public. BACKGROUND In their Requests for Review, the requesters each alleged that the Board' s February 24, 2015, meeting was not reasonably accessible to the public. Specifically, the requesters alleged that they were denied, or observed others being denied, entrance to the meeting room because it was already at capacity. Many of the requesters claimed that as a result of being denied entrance, they were unable to express their concerns regarding a Township sewer rate increase. This office forwarded copies of the Requests for Review to the Board and asked it to respond in writing to the allegations. Additionally, this office asked the Board to provide this office with copies of the February 24, 2015, meeting minutes, notice, and agenda. This office received the requested materials from the Board and forwarded copies of the Board' s response to 500 South Second Street, Springfield, Illinois ( 217) TTY: ( 217) Fax: ( 217) West Randolph Street, Chicago, Illinois, ( 312) TTY: ( 312) Fax: ( 312)

2 The Honorable Page 2 Brenda Reed the requesters. The Board provided the same written response for each case, with the exception of one Request for Review submitted by a Board trustee ( 2015 PAC 33808). In that matter, Trustee Jaynie Wells asserted that she had requested that the meeting be moved to a larger room prior to the meeting date in order to accommodate more people. The Board' s responses asserted that it did not reschedule or relocate the meeting because ( 1) it did not expect the number of people who wanted to attend the meeting to exceed the capacity of the meeting room; ( 2) the controversial sewer contract was not on the agenda for that meeting; ( 3) the room size had been more than adequate for prior meetings; and ( 4) there was insufficient time to provide notice of a rescheduled or relocated meeting. Seven of the requesters submitted a reply to the Board' s response. DETERMINATION It is the public policy of this State that public bodies exist to aid in the conduct of the people' s business and that the people have a right to be informed as to the conduct of their business." 5 ILCS 120/ 1 ( West 2014). "[ C] itizens shall be given * * * the right to attend all meetings at which any business of a public body is discussed or acted upon in any way." 5 ILCS 120/ 1 ( West 2014). Meeting Accessibility Section of OMA ( 5 ILCS 120/ ( West 2014)) provides that "[ all] meetings required by this Act to be public shall be held at specified times and places which are convenient and open to the public." " By its plain terms, section requires a venue that is not only 'open,' but 'convenient,' to the public." Gerwin v. Livingston County Board, App. 3d 352, 359 ( 4th Dist. 2003). Thus, " an open meeting in an inconvenient place violates [ OMA]." Gerwin, 345 Ill. App. 3d at 359. In addressing the meaning of "convenient" for purposes of section of OMA, the Gerwin court stated that "[ a] meeting can be open in the sense that no one is prohibited from attending it, but it can be held in such an ill-suited, unaccommodating, unadvantageous place that members of the public, as a practical matter, would be deterred from attending it." Gerwin, 345 Ill. App. 3d at 361. Still, the court found that "[ i] t would be unreasonable to suppose the legislature intended * * * that public bodies hold their meetings ' at such locations as are sufficient to accommodate all interested members of the public, such that they may see and hear all proceedings in reasonable comfort and safety."' ( Emphasis in original.) Gerwin, App. 3d at 361. Accordingly, the court construed section as requiring " not ' absolute accessibility' but 'reasonable accessibility."' Gerwin, 345 Ill. App. 3d at 362 ( quoting State ex ret Badke v. Village Board of the Village of Greendale, 173 Wis. 2d 553, 579, 494 N. W. 2d 408, 418 ( Wis. 1993)). Because the reasonableness of the meeting space in Gerwin was a question of fact that needed to be explored, the court held that the trial court had improperly dismissed the

3 Page 3 plaintiffs' claims. Gertvin, 345 I11. App. 3d at 362. In doing so, the court noted that the fact that the public body had typically held its meetings in the same meeting space was not dispositive of whether the same location was reasonable for the particular meeting at issue because " section does not allow custom to trump public convenience." Gerwin, 345 Ill. App. 3d at 362. Our determination in this matter hinges on whether the Board could and should have done more to provide greater accessibility under the circumstances surrounding the February 24, 2015, meeting. In its response to this office, the Board stated that the meeting location had a maximum occupancy limit of 76 persons and that a placard was posted ahead of time informing the public of this limit. While the Board " expected the meeting to be well attended," it claimed that " it in no way expected or could have known that nearly a hundred people or more would attempt to attend the meeting."' The Board asserted that none of the agenda items were contentious enough that high attendance was anticipated. On the other hand, the Board acknowledged that it " had received information that a group of people opposed to certain matters previously adopted by the Board would be present at the meeting," and therefore it had requested the service of two officers from the St. Clair County Sheriffs Office to assist in maintaining the safety and security of the meeting? Additionally, the Board stated that when a person left the meeting area, another member of the public waiting outside was allowed to enter. The person who left was not permitted to return to the meeting. Notably, the Board does not assert that there were no larger venues available for the meeting. In reply to the Board' s claim that nothing on its meeting agenda was contentious enough to alert the Board of unusually high attendance, seven requesters asserted that one of the agenda items was, in fact, highly contentious. Specifically, these requesters point to Agenda Item # 8: " Supervisor' s Report Public meeting held at Whiteside School. i4 A public meeting at Whiteside Middle School was held on February 4, 2015, to discuss a controversial agreement Letter from Brenda Reed, Clerk, St. Clair Township, to Shari West, Assistant Attorney General, Public Access Bureau ( March 28, 2015), at 1. 2Letter from Brenda Reed, Clerk, St. Clair Township, to Shari West, Assistant Attorney General, Public Access Bureau ( March 28, 2015), at 1. 3Letter from Jeffrey D. Harris to Shari L. West, Assistant Attorney General, Public Access Bureau March 31, 2015); Letter from Michael Greenfield to Shari West, Office of the Attorney General ( March 31, 2015); Letter from Madonna Greenfield to Shari West, Assistant Attorney General, Public Access Bureau ( April 1, 2015); Letter from Sue Gruberman to Shari West, Assistant Attorney General, Public Access Bureau ( April 3, 2015); Letter from Jaynie Wells to [ Shari] West ( undated); Letter from Bob Trentman, St. Clair County Board member, to Shari L. West ( April 13, 2015); E- mail from Patsy Tarvin to Shari West ( April 14, 2015). St. Clair Township Board, Meeting, Agenda Item 8. Supervisor' s Report Public meeting held at Whiteside School ( February 24, 2015).

4 Page 4 with the Village of Swansea that raised the Township's sewer rate for many residents. 5 requesters assert that attendance at this meeting was well over They also allege that at this meeting, residents were encouraged by the Town Supervisor, Dave Barnes, to come to regular Board meetings. Pointing to that meeting' s high turnout and opposition to the sewer rate increase, the requesters are consistent in their claim that the Board should have known that attendance at the February 24, 2015, meeting would be similarly high.8 The requesters also contend that the Board should have expected unusually high turnout given local television and press coverage of the sewer rate increase. This office has conducted an Internet search of local media coverage and found a February 14, 2015, article from the Belleville News -Democrat discussing the sewer rate increase. According to the Belleville News -Democrat, about 3, 200 St. Clair Township residents were to be affected by the rate increase, and a group of residents who opposed the increase had started a petition that contained more than 100 signatures. 9 This article states that the group of petitioners "[ had] been working to spread the word about the increase" and that the group "plan[ ned] to present the petition and express their opinions about the rate increase at the Swansea Board of Trustees meeting Tuesday and at the next St. Clair Township Board of Trustees meeting Tuesday, The 5One requester provided this office with a copy of the notice that was mailed with residents' sewer bills inviting them to attend a public meeting on February 4, 2015, at Whiteside Middle School to discuss the Swansea -St. Clair Township Sewer Agreement. See Letter from Sue Gruberman to Shari West, Assistant Attorney General, Public Access Bureau ( April 3, 2015). 6No minutes are posted for this meeting. However, requesters provided estimates of attendees. See Letter from Michael Greenfield to Shari West, Office of the Attorney General ( March 31, 2015); Letter from Madonna Greenfield to Shari West, Assistant Attorney General, Public Access Bureau ( April I, 2015); Letter from Sue Gruberman to Shari West, Assistant Attorney General, Public Access Bureau ( April 3, 2015); Letter from Bob Trentman, St. Clair County Board member, to Shari L. West ( April 13, 2015). 7See, e. g., letter from Sue Gruberman to Shari West, Assistant Attorney General, Public Access Bureau ( April 3, 2015), at 1 (" He said he encouraged everyone to attend [ Board] meetings and the next meeting would be on February 24, 2015."); Letter from Jeffrey D. Harris to Shari L. West, Assistant Attorney General, Public Access Bureau ( March 31, 2015), at 1 (" During the course of this meeting Supervisor Barnes himself encouraged concerned citizens to start attending township meetings"). In addition to the Whiteside meeting, some requesters state that they also attended a Village of Swansea board meeting on February 2, 2015, to express concern about the sewer rate increase. They assert that turnout at this meeting was similarly high and that Township Supervisor Barnes and a Board member were among the attendees. See Letter from Jeffrey D. Harris to Shari West, Assistant Attorney General, Public Access Bureau March 31, 2015); Letter from Bob Trentman, St. Clair County Board member, to Shari L. West ( April 13, 2015); E- mail from Patsy Tarvin to Shari West ( April 14, 2015). Democrat ( February 9Lexi Cortes, ' Very few are happy' about St. Clair Township sewer rate hike, Belleville News - 14, 2015, 8: 14 PM), com/ latest- news/ article html# storylink= cpy.

5 Page 5 February 24." ( Emphasis added.) 10 Consistent with this article, one requester asserts that he had submitted a request to the Board for the group of petitioners to be put on the agenda six days before the February 24, 2015, meeting." The local media coverage of the sewer rate increase and the actions of the plus group of petitioners suggest that the Board was aware of an unusually high level of interest in the Board' s activities well in advance of the February 24, 2015, meeting. Further, the Board' s decision to request the presence of two officers from the Sheriff' s Office suggests that the Board anticipated the possibility of a significantly larger than usual attendance. Further still, the Board' s claim that it could not have expected such a large crowd is contradicted by the fact that Trustee Wells e- mailed Township Supervisor Barnes and other Board members prior to the meeting about anticipating a turnout that would exceed the capacity of the meeting room. Trustee Wells provided this office with a copy of that e- mail, which she sent on February 20, It stated, in pertinent part: Dave, I understand the Swansea [ F] ire Chief was in the building today. He told you the capacity of our office is 78. You are aware that we are expecting more than that at the Tuesday meeting. * * * I am on the record as asking you to make other accommodations for this meeting. l1 1 In response to this office, the Board asserted that it did not have time to change the meeting date because the e- mail was sent just four days prior to the meeting. The Board argues that " any resetting of this meeting to a different date would have constituted a special meeting," which would have " require[ d] 14 days prior notice, among other things" under section 35 of the 10Lexi Cortes, ' Very few are happy' about St. Clair Township sewer rate hike, Belleville News - Democrat ( February 14, 2015, 8: 14 PM), com/ latest- news/ article html# storylink= cpy. Indeed, the minutes of the February 24, 2015, meeting document that ( luring the public comment period, over 20 members of the public raised questions and expressed consternation concerning the sewer agreement. Letter from Bob Trentman, St. Clair County Board member, to Shari L. West ( April 13, 2015); see also e- mail from Patsy Tarvin to Shari West ( April 14, 2015) (" St[.] Clair County Board member, Bob Trentman, had previously notified the township[ ] that a larger meeting room would be needed to accommodate the residents who were planning to attend the meeting. We had over 100 signatures on a petition from residents who were concerned about the new sewer contract scheduled to become effective on March 1, 2015."). 12E -mail from Jaynie Wells to Dave Barnes ( February 20, 2015).

6 Page 6 Township Code ( 60 ILCS 1/ 35-5 ( West 2014)). 13 Additionally, the Board argues that the Township Supervisor, who was addressed specifically in the e- mail, did not have authority to set a special township meeting pursuant to section of the Township Code ( 60 ILCS 1/ West 2014)), which states that " the place of holding township meetings shall be some convenient place in the township fixed by the township board." The Board asserts that " it was incumbent on [ the trustee] to convey this information to the full board and set an alternative location and or date to convene this meeting. i14 Based on this office' s review, however, the e- mail addressed members. to the Township Supervisor also appears to have been copied to all Board As to the Boards assertion that special township meetings require at least 14 days advance notice, the February 24, 2015, meeting was listed as a regular monthly meeting on the 2015 schedule of regular meetings that the Board provided with its response to Trustee Wells' Request for Review. The Board provides no basis for the claim that a " resetting" of this regular meeting would have somehow transformed it into a " special township meeting" that, pursuant to section 35-5 of the Township Code, must " be held no less than 14 nor more than 45 days after the written request [ for the special township meeting] is filed in the office of the township clerk." Section 2. 02( a) of OMA ( 5 ILCS 120/ 2. 02( a) ( West 2014)), on the other hand, sets forth the advance notice requirements for rescheduled regular meetings: Public notice of any special meeting except a meeting held in the event of a bona fide emergency, or of any rescheduled regular meeting, or of any reconvened meeting, shall be given at least 48 hours before such meeting, which notice shall also include the agenda for the special, rescheduled, or reconvened meeting, but the validity of any action taken by the public body which is germane to a subject on the agenda shall not be affected by other errors or omissions in the agenda. ( Emphasis added.) Accordingly, it is clear that the Board had ample time to change the location of the February 24, 2015, meeting and post advance notice in accordance with OMA after receiving Trustee Wells' s e- mail. alternative The Board' s response to this office did not address whether the Board considered meeting locations. A handful of requesters allege that there was other space in the Letter from Brenda Reed, Clerk, St. Public Access Bureau ( March 28, 2015). Clair Township, to Shari West, Assistant Attorney General, 14Letter from Brenda Reed, Clerk, St. Public Access Bureau ( March 28, 2015). Clair Township, to Shari West, Assistant Attorney General,

7 Page 7 same building that could have accommodated more than 76 people. is For instance. one requester asserted that "[ t] he Township Building is big enough to accommodate 100 plus people if [the Board] would have relocated the meeting to a different area in the back of the building rather than the meeting room in the same building. i16 Another requester provided this office with photos of an alternative location in the same building that potentially could have accommodated more people." The information provided by the requesters suggests that the Board could have moved the meeting to a larger space in the same building and still provided proper notice in accordance with section of OMA. Additionally, although the Board asserted that it attempted to accommodate high turnout by permitting individuals who waited outside to enter the meeting once individuals who were inside left the meeting room, this measure still capped the number of people who could attend because those who left the room were prohibited from re- entering the meeting. The Board did not state that it made any other attempts to accommodate more people at the meeting location, such as by providing standing room in an adjacent lobby and/ or a speaker system, so that some members of the public could have at least listened to the meeting. Although the Board is not required to ensure that every meeting is accessible to every member of the public who wishes to attend, OMA requires a public body to take reasonable measures to respond to signals of increased public interest in order to ensure that its meetings are reasonably accessible to the public. Based on the available information, the Board was aware or should have been aware well in advance of the February 24, 2015, meeting that the location of that meeting would not be adequate to accommodate the members of the public who planned to attend it. Therefore, this office concludes that the Board violated section of OMA by failing to hold that meeting in an open and convenient location. the 15See, e.g., letter from Michael Greenfield to Shari West, Office of the Attorney General ( March 31, 2015) (" The Township Building is big enough to accommodate 100 plus people if [the Board] would have relocated the meeting to a different area in the back of [the] building rather than the meeting room in the same building."); Letter from Madonna Greenfield to Shari West, Assistant Attorney General, Public Access Bureau April 1, 2015) (" l would like to bring your attention that the Township Building is approximately 19, 000[] square feet. I have included pictures with this letter. ( See attached) 4, 900 sq[. I feet of the inside of the same Township building where the meeting should have been held could have accommodated 100 plus taxpayers that could have attended the meeting."); Letter from Letter from Bob Trentman, St. Clair County Board member, to Shari L. West April 13, 2015) (" The Township meeting room where the meetings normally take place is rather small but adjacent to a very large heated shop area[.]"); E- mail from Patsy Tarvin to Shari West ( April 14, 2015) (" The township meeting place is in a bldg. which has a much larger area available for meetings such as these."). 2015). 6See Letter from Michael Greenfield to Shari West, Office of the Attorney General ( March 31, See Letter from Madonna Greenfield to Shari West, Assistant Attorney General, Public Access Bureau ( April 1, 2015).

8 Page 8 In this instance, there is no corrective action that can rectify the Board' s violation of section of OMA. However, this office cautions the Board to be mindful of its obligation to anticipate instances in which adjustments to accommodations may be necessary to provide the public with reasonable access to its meetings, and to plan accordingly. The Public Access Counselor has determined that resolution of these matters does not require the issuance of a binding opinion. This letter shall serve to close these matters. If any party has questions, please contact me at the Chicago address listed on the first page of this letter. Very truly yours, TERESA LIM Assistant Attorney General Public Access Bureau o consol 201 location improper mun cc: See attached list Ms. Jaynie Wells Jniel@sbcglobal. net Ms. Claire Bandy 608 Glen Mor Shiloh, Illinois bandyce@gmail. com Ms. Claire Prindable 104 Eastshore Drive Belleville, Illinois Ms. Mary Pearson 1900 Stevens Street Mr. John Schmierbach 3218 Frank Scott Parkway West Ms. Kelsey Panzau 2043 Llewellyn Road

9 The Honorable Page 9 Brenda Reed Mr. Dean Koopmann 60 Cheshire Drive Ms. Madonna Greenfield 3798 Michael John Drive Swansea, Illinois Ms. Sue Gruberman 2309 Stonecastle Avenue Belleville, Illinois Mr. Michael Greenfield, Sr Michael John Drive Swansea, Illinois Mr. John Tiernan 721 Southgate Drive Tiemanj ohn cm Mr. Jeffrey D. Harris 103 North 41st Street Elmo_ 1106@yahoo. com Mr. Jim Kopp 504 Winslow Road Ms. Geraldine Gehrs & Mr. Nicholas A. Gehrs 1 Hil Char Drive Mr. Bobby Carmack 224 South 17th Street Ms. Patsy Tarvin 2639 Piper Hills Drive Shiloh, Illinois Ptarvin2005@charter. net Ms. Sue Yaekel 6 Minden Drive Belleville, Illinois Mr. Robert Buechler 408 Winslow Road Mr. Clinton J. Buechler 1409 Jay Avenue Via electronic mail Mr. Kurt Kassebaum 2839 Old Freeburg Road Belleville, Illinois Kkassebaum53@yahoo. com

10 Page Ms. Kelle Trentman 2601 Old Collinsville Road Mr. Clinton J. Trentman 2601 Old Collinsville Road com Mr. Robert Trentman 2601 Old Collinsville Road Ms. Angela Grossman- Roewe 3 Sundew Court Belleville, Illinois angieroewe@yahoo. com