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May 22, 2024

U46 School District – Un-elected Official goes unchecked – Badge of Honor for attorney Part I –

By Kirk Allen & John Kraft

On May 14, 2016


Kane Co. (ECWd) –

Un-elected official:

105 ILCS 5/10-14The Secretary of Board of education, commonly known as the Clerk of a school board, shall be elected by the board of education and may be a member thereof.  District U-46 does things with what many consider a conflicting and problematic practice.  They have their contracted attorney acting as Clerk while also providing legal counsel.

What happens when the public body gets sued for violating the Open Meetings Act?  Then that attorney will be called upon to defend the public body for the violations that he may have been a party to committing, (yes, this has recently happened) and crosses the line between advocating for a client and essentially acting “pro se” defending his own actions in the name of the public body and with public funds?

A recent OMA complaint against U46 was closed out by the Public Access Counselor, they ruled in favor of U46, and by all indications, they accepted the unverified claims of the Attorney representing U46 who is also the clerk and participated in the alleged violation.  There are many facets to this situation that will require multiple articles to truly grasp the magnitude of how far we have come from any resemblance of compliance with the law and accountability to it.

I captured the minutes from the October 19th, 2016 7pm regular meeting prior to filing my request for review.  They can be viewed at this link.   In fact, in November, I sent the following email to two people with a link, that, at that time, took you to minutes I captured and just referenced.

“NO MINUTES for the meeting called to order and then going into closed session.  Their minutes confirm the regular meeting started at 7:15. “

Now that link provides a completely different set of minutes!

What you have here, and was in fact shared with the Public Access Counselor, is U46 committing forgery as it is clear they changed the minutes from the ones I first captured and made them reflect something quite different in order to misrepresent what really happen.  The change came AFTER I filed my complaint that also contained a video explaining how U46 “could” have handled their multiple meetings at two different times.

At the 4:50 mark of the video linked here, you can see a detailed explanation of what is on the bulletin board, what they COULD do, which is, make it all one meeting starting at 5pm, recess, then come back into session at 7pm.  It is clear listening to the video/audio, there is NO 5:15 meeting agenda posted.   In fact, a request for the security officer to provide a 5 pm agenda garners a response that he doesn’t want to get roped into this.

There was no 5 pm agenda posted! 

It’s clear in their successful effort to cover up their violations they took our advice on how they should have handled the meeting postings.  We now welcome the opportunity to lay out all the facts regarding the lies and manipulation of information in order to get away with violating the law, in spite of affidavits provided that proved they violated the law.

What makes this situation so troubling is how the Public Access Counselor handled the case and the evidence gathering.   In ruling against our request for review in part, they cited, “The Public Access Bureau has previously determined that the Board held a single meeting on October 19, 2015”. 

Looking at that previous determination they stated, “In light of these conflicting versions, there is insufficient evidence from which this office could conclude that that the Board violated section 2.02(a) of OMA in connection with its October 19, 2015, meeting”.

“Conflicting versions – insufficient evidence”

The conflicting version, as they call it, was found in the lie told by the attorney who is also the keeper of the records.  The PAC stated,  “In addition, in a telephone conversation with an Assistant Attorney General in the Public Access Bureau, counsel for the Board stated that he confirmed with the employee who is responsible for posting meeting notices and agendas that the agenda for the closed-session portion of the meeting was posted at the location of the meeting with the open session agenda and the meeting notices”.

As far as insufficient evidence, note that the attorney for U46 provided no name or affidavit from this employee who he claims told him the closed-session agenda was posted.  In fact, not only was no closed session agenda posted, we provided affidavits to the fact no agenda was posted and video evidence. In addition, a simple phone call to the police by the PAC would have confirmed no such agenda was posted, however, I was told they don’t have the time and resources to investigate matters to that depth.

May we suggest legislation to properly fund the PAC so that the people are being represented properly?  Yes, that is an allegation that they failed to represent the people properly!

Those who know our work also know we are not going to get the police involved on a matter if such an agenda was posted.  The police were involved because U46 did not post an agenda for a 5pm meeting on October 19th, 2015 and they refused our right to speak during that meeting.

We challenge the employee who claims such an agenda was posted to provide an affidavit under oath of perjury to that fact.  Everyone in the entry to that building that night, to include their security employee, numerous citizens, and the police, know for a fact there was no agenda posted for a 5pm meeting as the lawyer claimed.

In the ruling in favor of U46 by the PAC on my complaint, they stated, “Because there is conflicting evidence regarding the posting of these agendas, there is insufficient evidence for us to conclude the Board violated section 2. 02( a) of OMA by failing to post meeting agendas. That does not mean the OMA was not violated, only that the PAC says there wasn’t enough evidence.

I spoke with the PAC office and asked them what evidence was provided that was conflicting as I was not provided any evidence submitted by U46 legal counsel.  In short, they had no response as there was no evidence provided by U46. To claim there is conflicting evidence when I was the only one who provided any is troubling, to say the least.

So what we have here is a case where the PAC office has chosen to claim conflicting evidence as the reason to side with the public body when in fact I was the only one that submitted any evidence.  That is a complete failure of the system.

Most disturbing in this situation is that during my conversation with the PAC I was told, “Mr. Allen, they are doing it right now and isn’t that your goal?

I told the PAC, “yes, our goal is to ensure the public body follows the law, which is doing it right, however, your statement is an acknowledgment that they were not doing it right before yet you ruled against me.”  When a person says they are doing it right “now” it clearly is an implication that they were not doing it right before.

How ironic, even U46 Board Secretary/Attorney acknowledged specific requirements of OMA may not have been met for these two meetings.  As it related to the specifics of my complaint, the first meeting pertained to a  finance meeting. The second is the 5 pm meeting that had no agenda posted.

“While all of the specific requirements of OMA may not have been met for these two meetings, notice was given as evidenced by the fact that Mr. Allen not only was aware of the meetings and their location but he also actively participated in the November 2, 2015, 4 p.m. meeting.

The quote from the board Secretary/Attorney is more wordsmithing that worked.  Just because we participated in a meeting does not mean proper posting of the agenda took place.  Note he makes no mention of the agenda posting in that statement, only a reference to the notice of the meeting.

In the next several articles we will lay out the manipulation of records and show other public bodies how they can lie to the PAC office and get away with violating the Open Meetings Act by simply following the path taken by the U46 board Secretary/Attorney who now claims the ruling in their favor reflects the AG telling them they got an “A” in how they handle their open meetings act compliance, all while failing to disclose to the public what the PAC told them, which was:

“However, we caution the Board to ensure that all agendas are posted at its principal office as required by section 2. 02( a) ofOMA in the future; the creation of a single agenda for regular Board meetings should assist in ensuring compliance.”

Interesting to see the PAC cautioning the Board on agenda postings in the future, when they just ruled they did nothing wrong?  Why issue a caution for future posting requirements if they did nothing wrong?  Even more interesting is the claim a single agenda for regular board meetings should assist in ensuring compliance, when in fact our very complaint was they had TWO separate agendas with two separate start times, thus two separate meetings.

Stay tuned for Part II that we promise won’t disappoint you!

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U-46 FOIA article


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