O'Fallon Progress

Two-year fight over O’Fallon closed session tape yields no surprises

Tempers flared Tuesday, Feb. 21 over the interpretation of the Illinois Attorney General’s recent decision that the O’Fallon City Council violated the Open Meetings Act two years ago.

During public comments, Mayor Gary Graham threatened to remove Kie Zelms, representing the Citizens for Action Committee (CAC), who read a prepared statement about the ruling.

The CAC opposed O’Fallon privatizing its water and sewer contracts and put a referendum on a citywide ballot in 2015, which the city also did. The measure was defeated, keeping water and sewer a public utility.

At issue was a Jan. 5, 2015, council meeting — whether the council discussed what it said it would during an executive session. Zelms said the council voted to go into executive or closed session to discuss the “sale or lease of public property and to set a price for such a sale.” The CAC did not think the council set a price during its executive session and had discussed other items related to the ballot.

Indeed, after one hour and 25 minutes, the council returned from executive session and passed a motion to place a referendum on the ballot for a vote of the people.

This was, Zelms said, after the council had been informed in the same meeting that petitions had already been filed earlier that day by the citizens’ group to force a public vote.

On March 4, 2015, attorney Kristi Vetri had filed a request for review, alleging the council violated the Open Meetings Act by “discussing in closed session matters and issues not specified in the vote to close under the OMA and not excepted under the OMA.”

The recent ruling concluded: “The closed session minutes do not reflect any discussion concerning the selling of a price for sale or lease of the city’s public water and wastewater systems.”

In a Jan. 31 letter, Assistant Attorney General Edie Steinberg told the council to “remedy this violation of OMA by providing the committee with copies of the closed session minutes and closed session verbatim recording for the council’s January 5, 2015 meeting.”

Instead of giving copies of the minutes and the recorded tape to the CAC, the mayor said the tape would be played after the council meeting, which is also televised on the public access channel. The recording would also be available on the city’s website Feb. 22, he said.

Zelms objected while both City Attorney Dale Funk and Graham pointed out that Steinberg wrote in the last paragraph that it was a “non-binding opinion.”

“You have cost the citizens thousands of dollars,” Graham said.

While Zelms and the mayor continued to shout at each other, Graham yelled: “Sit down — now.”

Zelms said the committee waited over two weeks for Funk to deliver the items as advised.

“Vetri (the CAC attorney) contacted him multiple times and listened to a variety of excuses over a two-week period. Finally, at the close of business on Friday, Feb. 17, she learned that Mayor Graham planned to play the verbatim tape publicly after the meeting adjourns tonight,” Zelms said. “This is not the remedy specified in the Attorney General’s determination. Violation of the Open Meetings Act is not to be taken lightly or swept under the rug.

“The remedy for violation of the Open Meetings Act is the responsibility of council, not the mayor, not the city clerk, even though he is responsible for all city documents and for ensuring compliance with the Open Meetings Act,” she said. “The city’s corporate attorney, Mr. Funk, advises the ‘public body’ and is responsible for ensuring that all meetings are conducted in compliance with the Open Meetings Act. The city attorney should not have allowed a lengthy discussion in closed session of matters that did not relate to the exception permitted by the Open Meetings Act. The assistant attorney general emphasized that, OMA is intended to, ‘ensure that the actions of public bodies be taken openly and that their deliberations be conducted openly.’”

During their heated exchange, Graham told her: “You think there is a smoking gun. There is nothing there … I am trying to talk to you, and you keep interrupting me. You are being very rude. I am being very kind to you.”

Funk said the city is honoring the ruling.

“The council has been as transparent as they can be. They have done nothing wrong. You have cost the city 7-, 8-, even 10 thousand dollars in attorney fees,” he said.

“We don’t have to do it. We are doing it for you. We are playing it for the public, not just for your friends … You’re getting what you want and it’s not good enough,” Graham said.

The recording began playing about 7:50 p.m. Five people stayed afterward to hear it.

Graham said he was not staying.

“I’ve listened to it twice,” he said.

Zelms said the tape had no surprises.

“It was pretty much what we expected, which was all conversation about the wording and advisability of the mayor putting a question on the ballot from the city in addition to the question that we already had filed as citizens. If the city would deliberate openly. That’s the issue,” she said.