Silence is golden

In Illinois silence is golden as is the vacated U.S. Senate seat once held by the sitting President. Even the childhood home of President Ronald Reagan, Dixon, can’t escape a system that is broke (in more ways than one), rewards the corrupt and punishes only those stupid enough to get caught.

A glimmer of hope for open, honest government emerged when Lisa Madigan got elected as Illinois Attorney General and in short order attacked public corruption by strengthening the Illinois Open Meetings Act and Freedom of Information Act. She created the office of the Public Access Counselor for the public to request a review of potential violations of transparency laws.

Here’s a copy of a recent Request for Review:

Sarah Pratt
Acting Public Access Counselor
Office of the Attorney General
500 S. 2nd Street
Springfield, Illinois 62706

Re: Request for Review for possible OMA violation: City of DeKalb

The elected City Clerk for the City of DeKalb resigned in February, 2012. Initially the public was told that his resignation was for personal reasons. He was given a two-month severance package of more than $10,000. The public was assured that there was nothing illegal done by Kapitan as rumors were prevalent that he was escorted from City Hall by police officers.

Later the DeKalb County State’s Attorney, Clay Campbell, was asked by the local newspaper (Daily Chronicle) about the incident. Campbell informed the Chronicle that his office had been consulted about possible OMA violations involving Kapitan but declined to offer details. Only after Campbell’s statements were published did the City of DeKalb, through its city attorney, Dean Frieders, announce that the City of DeKalb took the OMA seriously and that Kapitan had not complied with OMA requirements for closed session minutes and thus was the reason for his resignation.

A copy of his resignation, drafted by the City Attorney is available at this link: http://www.scribd.com/doc/80680031/Kapitan-Resignation-02-03-12 . I ask for your attention to item #3 of the conditions. “The City agrees that it shall adhere to its legal obligations with respect to the confidentiality of personal employee/official information. Kapitan agrees that he shall maintain as confidential all information of the City that was shared with him on a confidential basis, including information disclosed in executive sessions of any City council board or entity, information relating to City employees, information which by law is required to be maintained as confidential, and information which is exempt from disclosure under the Freedom of Information Act or which is exempt from public discussion under the Open Meetings Act.”

I also ask your attention to page 28 of Lisa Madigan’s Guide to the Open Meetings Act: “A public body cannot sanction one of its members for disclosing information or issues discussed in a closed meeting. 1991 Ill. Att’y Gen. Op. 1. The Attorney General noted that the possibility of such sanctions “would only serve as an obstacle to the effective enforcement of the Act, and a shield behind which opponents of open government could hide.”

The $10,000 severance pay, which was not part of any employment contract with Steve Kapitan, an elected official, purchased his silence. It created at an implied threat of sanction if Kapitan discussed any of the matters that led to his resignation and any other issues discussed in a closed meeting. The $10,000 severance package was not deliberated in any public session, nor was the public notified of any such final action taken in closed session. The explanation was that the severance package was authorized by the City Manager, Mark Biernacki, through an ordinance that allows him to spend up to $20,000 without city council approval.

Can an elected public official’s silence be purchased? Clearly this is a violation in spirit and in letter of the Illinois Open Meetings Act.

Thank you,

Mac McIntyre

A few weeks later I get this response:

Mr. McIntyre:

I’ve received your message concerning the Open Meetings Act and I was hoping to get some clarification about the underlying circumstances and your concerns. Could you please contact me at your convenience at xxx xxx-xxxx so we can discuss this matter?

Thanks.

Steve Silverman
Assistant Attorney General
Office of the Attorney General
100 West Randolph Street, 11th Floor
Chicago, Illinois 60601

So I called Mr. Silverman. He thought the matter was more of an employment contract and not an Open Meetings Act issue. Elected officials do not have employment contracts. I’ll go out on a limb here and say that very few, if any, elected officials in Illinois (other than Steve Kapitan) have ever signed a contract; drafted by the city attorney, announcing his unconditional resignation from his elected position while providing two months severance pay (@$10,000) on conditions including a (click on the document image for an enlarged view) vow of confidentiality on any information exempt from disclosure under the Freedom of Information Act or exempt from public discussion under the Open Meetings Act :

Maybe it’s just me but I think some of the language in Kapitan’s Resignation and Separation Agreement was written with Mr. Silverman’s office in mind. It’s said that I am a conspiracy theorist so consider that when I tell you that the City of DeKalb just happened to be under formal review for potential Open Meetings Act violations by Lisa Madigan’s office of Public Access Counselors. Peculiar in this case was the irony that although Kapitan allegedly resigned for not being able to produce written minutes of closed session meetings he evidently did furnish the minutes to the closed session meeting under review. Somewhat clouding the issue was the revelation by DeKalb County State’s Attorney Clay Campbell that his office had discussions with DeKalb City Attorney Dean Frieders regarding the matter prior to Kapitan’s resignation. No details were provided.

Statistics might prove otherwise but I’d say the odds of Kapitan’s resignation contract being repeated elsewhere are about the same as the Dixon heist.

I asked Mr. Silverman for a written response to my request for review. Just trying to keep a digital trail.

He said he would send it. Stay tuned.