AG: DeKalb Violated Open Meetings Act by Holding Closed Session to Discuss Elected Clerk –

DeKalb, IL. (ECWd) –

The Illinois Attorney General issued a determination declaring that the City of DeKalb violated the Open Meetings Act by entering into closed session to discuss the performance of the elected City Clerk.

The Attorney General also asked the city to make the closed session recording available to the public, because those discussions were improperly held in closed session.

DeKalb’s form of municipal government does not grant the city council powers to remove an elected clerk from office, therefore it cannot enter into closed session to discuss the clerk.

From the determination (emphasis ours):

The plain language of section 2(c)(3) of OMA only permits a municipal public body such as a city council to privately deliberate on an officeholder’s performance, discipline or removal from office if it has been “given the power to remove the occupant under law or ordinance.” (Emphasis added.) 5 ILCS 120/2(c)(3) (West 2020). The City has a managerial form of government. Under that form of government, the City Council is authorized to appoint a city manager who “may at any time be removed from office by a majority vote of the members of the council[.]” 65 ILCS 5/5-3-7 (West 2020), as amended by Public Act 102-15, effective June 17, 2021. No provision of the Illinois Municipal Code governing the managerial form of government permits the City Council to remove the city clerk, who is an elected officer, from office.

The narrowly construed section 2(c)(3) exception does not permit the City Council to engage in wide-ranging discussions of an officer’s performance or discipline or removal from office simply because a provision of the Municipal Code authorizes the City Council to declare the City Clerk’s office vacant under certain conditions, such as if it determines a disability impaired the City Clerk from performing his public duties after either the appointment of a guardian ad litem or a finding of impairment due to disability by a licensed doctor.

. . . this office concludes that the City Council improperly discussed the City Clerk and recording secretary position in closed session pursuant to the section 2(c)(3) exception. This office requests that the City Council remedy that violation by voting to publicly disclose those portions of the closed session minutes and verbatim recording.