March 4, 2017 · 0 Comments
Shelby Co. (ECWd) –
When we write about illegal actions by public officials, in this case, the Shelbyville Township, it’s important to understand what we are saying. Illegal simply means a violation of law, and does not always indicate a criminal violation. When it comes to taking action in public meetings, the Open Meetings Act (OMA) is the rule book and one that is easy to follow, or so we thought.
Most violations of the OMA are criminal Class C Misdemeanors but please, don’t take my word for it, read it for yourself at this link. I once asked a prosecutor how he determines what would constitute criminal activity and I was told the following: “When a person is made aware that they are violating the law and they failed to correct the illegal practice and/or continued to violate it, that would put them into a position of facing a criminal charge”.
As it relates to Shelbyville Township, the first meeting we attended was a meeting called in violation of the law. They were made aware of the violation and they canceled their meeting and rescheduled. We thanked them for doing the right thing and followed up with confirmation that they had all complied with their OMA training. Considering they had complied with the training, we can only wonder why they violated their obligations regarding that law?
As we continued our research on matters in this township, serious concerns began to percolate like morning coffee. For those not familiar with Township government and how it’s supposed to operate, just know this for now: they cannot take action on any item that is not listed on the agenda at any public meeting . Such action is in violation of the law (illegal) and the courts have in fact invalidated such action.
The College of DuPage prosecution is one that comes to mind. A case in which we filed a criminal complaint about action taken in closed session with the guidance of their legal counsel. The State’s Attorney prosecuted the Board of Trustees in that case and the courts invalidated an approximate $500,000.00 contract extension for the now former president at the College of DuPage.
Annual Township meetings are the meetings in which the electors (registered voters) of the township can take action in their township, as Township government is in fact meant to be controlled by those electors, contrary to what many Township trustees think. Certain actions in Township government can only be done at this particular meeting or a special meeting.
Those authorized actions are to be found on the agenda for the Annual Township meeting. If it is not on the agenda, it is not allowed to be acted on and any such action is in direct violation of the Open Meetings Act as well as the Township Code.
So how do items get placed on the agenda and how do registered voters of a Township have matters placed on the agenda?
If you live in Shelbyville Township and you are a registered voter as outlined in the law, you, along with at least 14 other qualified people may request an agenda item for consideration by the electors at the Annual Meeting. Do not confuse electors with elected officials or trustees. If only two people show up for the annual meeting, as in two electors, they are the voting electors for the meeting.
Our review of the agendas from the Township reflects that no agenda item is listed pertaining to the approval of an agenda for the Annual Township Meeting or any special meeting. Without an approved agenda for the Annual Meeting, no action can be taken at that meeting and any action that was taken not only violates the Open Meetings act but also violates the Township Code. Such an action can fall under the Official Misconduct statute for criminal prosecution in certain cases.
“(a) A public officer or employee or special government agent commits misconduct when, in his official capacity or capacity as a special government agent, he or she commits any of the following acts:”
(c) A public officer or employee or special government agent convicted of violating any provision of this Section forfeits his or her office or employment or position as a special government agent. In addition, he or she commits a Class 3 felony.
What action do we find taken at the last three years of Township meetings in Shelbyville?
Fund Transfers – 60 ILCS 1/245-5(a) –
We obtained copies of resolutions for fund transfers, which were all acted on during the annual meeting for which no agenda was approved. In addition, we must admit confusion because the 2014 minutes states the following:
“A discussion was held concerning the proposed transfer of monies from fund to fund as the same was included on the Agenda of the Annual Town Meeting approved by the Supervisor and Trustees in accordance with law.”
How is it that minutes are drafted claiming certain requirements were complied with in accordance with law when in fact the evidence reflects it was not done in accordance with the law? Who drafted the minutes citing compliance and what led them to believe that was accurate? Even more concerning, the agendas provided for 2016 reflect no agendas at all for five of the months out of the year, January-April, and June are missing, while the August agenda reflects a $4,500 transfer. Transfers of funds may only take place at special meetings and or the Annual Meeting.
That action violates the Open Meetings Act, Township Code regarding agenda requirements, as well as the Township Code pertaining to fund transfers. Is that three outs for the inning?
Open Meetings Act – Minutes
We suspect most people understand the basics of minutes but to ensure the understanding of the law, please read the section on minutes, especially item (2&3).
Sec. 2.06. Minutes; right to speak.
(a) All public bodies shall keep written minutes of all their meetings, whether open or closed, and a verbatim record of all their closed meetings in the form of an audio or video recording. Minutes shall include, but need not be limited to:
(1) the date, time and place of the meeting;
(2) the members of the public body recorded as either present or absent and whether the members were physically present or present by means of video or audio conference; and
(3) a summary of discussion on all matters proposed, deliberated, or decided, and a record of any votes taken.
Looking at the 2014 minutes from the last Annual Township meeting we find key items missing from the minutes. The minutes do not reflect a record of those present or absent as required. Nor is there any record of votes taken on the resolutions that were in fact acted on. The minutes reflect motions were made, seconded and then passed with absolutely no indication or record of any votes taken, which is a violation of the Open Meetings Act.
We find in 2015 a different form was used and it appears certain items reflect a check mark by those voting on a measure and then a check mark confirming it passed, however, we find yet another very concerning failure. The agenda item regarding Resolution to transfer funds shows a motion was made and second, however it does not indicate if that motion passed or failed as both sections are left blank.
The 2016 minutes from the Annual Township meeting follow a similar format to 2014 however once again we find missing mandatory items to include, a record of who was present or absent, and a record of any vote taken.
All three years an election was held to appoint Liz Nohren as moderator for the meeting yet no votes are recorded to indicate who voted for or against. All action taken in 2014 and 2016 was done with nothing more than a motion and second and no vote ever being recorded.
So what is the solution to the issues exposed? All things considered, I would urge resignations in this case as it’s evident they are not reading the most basic laws in which they are supposed to be following and although some things have been corrected, we are told others will not be.
Short of resignations, the only other options are legal action to force them to follow the law, which is in the form of a writ-of-mandamus, or the electors of this township get involved and realize they too have a responsibility within their community.
By Kirk Allen
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