Appoint the elected

The disconnect between the City of DeKalb and its citizenry is as real as it is unfortunate. Local business leaders participating in the Strength, Weaknesses, Opportunities and Threats analysis moderated by the EPI financial consultants told the city council that it was easier to do business in neighboring communities than in DeKalb. The EPI consultants asked the appointed administrative staff and the elected municipal officials to grade each other from an A to an F. Each side gave the other an F.

What do they think that projects to the community? Granted not many paid that close attention to the grading incident in the larger scope of the EPI Report but it’s a telltale sign the participating public observes.

Frequent public comments by a frustrated Dave Baker, 6th ward alderman, hinting at improper discussions combined with his occasional votes against going into closed session made anyone paying attention wonder what exactly goes on behind those closed doors. Baker is so oblivious he thinks nothing of sending, receiving and reading text messages while discussing a motion on the floor awaiting the council’s vote during the televised meetings.

Video provided by Mark Charvat

It’s not an entirely local issue in DeKalb. Chicago is ranked as the most corrupt city in the U.S. Illinois is the third most corrupt state in the nation. The last two past Governors are serving lengthy prison sentences. The Illinois Attorney General, Lisa Madigan, decided sunshine was the best remedy for government corruption so she revamped the Open Meetings Act and the Freedom of Information Act. Her office has been swamped ever since.

So FOIA requests increased in DeKalb and elsewhere. Mayor Kris Povlsen told DeKalb County State’s Attorney Clay Campbell that in his 16 years career as council member and mayor he has not seen one shred of evidence of any wrongdoing by DeKalb elected officials or staff. The facts disagree.

Then 3rd ward alderman Victor Wogen resigned from office amid public outcry over alleged improper contracts for work on the downtown revitalization program. The contracts were not properly disclosed to the city council or the public and appeared to be outside of what is allowable under state statutes. The contracts were arranged under an ordinance that allows the city manager to spend up to $20,000 without consent of the mayor or city council.

Also;

• The same city manager allowance was used to pay for independent contractor services over an extended period of time to create and manage a proposed rental licensing and inspection as well as a nuisance ordinance. The city council had discussed the arrangement and indicated their support of it in closed sessions. They eventually voted to nix the proposed ordinances. But one full year of the expenses of that proposed program remained in the budget despite the city council’s decision to remove the proposed revenue from the budget.
• The DeKalb Public Library Board of Trustees held a series of closed sessions over a two year period to find, negotiate and purchase land for an expanded library. At least one of the closed session meetings included discussion of the library’s tax levy. In another the board voted in closed session to approve the purchase. That action led to a formal review by the Illinois Attorney General and the involvement of then DeKalb County State’s Attorney John Farrell and a decree from Judge Kurt Klein.

The disconnection is cyclical. The DeKalb Public Library found another property to build an expansion on. The board decided to button down and follow all of the Open Meeting Act rules this time. But they also decided that since the word “may” appears in the Illinois Local Library Act they shall not follow it.

The Illinois Attorney General’s office is formally reviewing potential Open Meetings Act violations due to alleged closed session arrangements with an independent consulting firm hired to help write new ordinances for a rental licensing program and nuisances.

The Attorney General requested copies of the video recording and minutes of a closed session meeting as part of the review.

Then City Clerk, Steve Kapitan, evidently couldn’t produce the minutes. After reportedly consulting with an attorney and a confirmed meeting between legal counsel for the City of DeKalb Dean Frieders, and DeKalb County State’s Attorney Clay Campbell, Kapitan suddenly and silently resigned his elected position. He signed a “voluntary unconditional resignation” agreement drafted by Frieders that included the following conditions.

1. Kapitan agreed to not discuss closed sessions and other matters.
2. Kapitan received some $10,000 in severance pay.

Instead of explaining to the public what the heck just went on the mayor and city council do what they tend to do in similar circumstances. They just moved on to the next item on the agenda.

Then after appointing a replacement for Kapitan as city clerk the mayor and council decide its the most opportune time to, in the words of Dave Baker, “neuter the elected position” so if they put a referendum question on the November ballot to make the position an appointed one, as desired by City Manager Mark Biernacki, the voters will know it’s not a $63,000 a year job any more.

The mayor and city council then proceeded to devalue the city clerk’s position as a watchdog and fret about the electorate choosing a clerically unqualified candidate like Steve Kapitan again. Third ward alderman Kristen Lash said she heard from a lot of her constituents and they wanted the position to remain elected because they wanted an elected watchdog attending weekly staff meetings. Perhaps Lash and the rest of the council could read the brief state statutes defining the duties of the city clerk:

(65 ILCS 5/3.1-35-90) (from Ch. 24, par. 3.1-35-90)
Sec. 3.1-35-90. Clerk; duties.
(a) The municipal clerk shall keep the corporate seal, to be provided by the corporate authorities, and all papers belonging to the municipality the custody and control of which are not given to other officers. The clerk shall attend all meetings of the corporate authorities including executive sessions and keep a full record of their proceedings in the journal, except if the clerk is the subject matter of the meeting and his or her presence creates a conflict of interest. The record of those proceedings shall be made available for public inspection within 7 days after being approved or accepted by the corporate authorities as the official minutes of their proceedings.
(b) The municipal clerk shall have other duties prescribed by the corporate authorities.
(c) Copies of all papers duly filed in the clerk’s office and transcripts from the journals and other records and files of the clerk’s office, certified by the clerk under the corporate seal, shall be evidence in all courts in like manner as if the originals were produced.
(Source: P.A. 96-294, eff. 8-11-09.)

(65 ILCS 5/3.1-35-95) (from Ch. 24, par. 3.1-35-95)
Sec. 3.1-35-95. Deputy clerks.
(a) A deputy clerk may execute all documents required by law to be executed by the municipal clerk and may affix the seal of the clerk wherever required. In signing any document, a deputy clerk shall sign the name of the clerk followed with the word “By” and the deputy clerk’s own name and the words “Deputy Clerk”.
(b) Except in municipalities with a population of 500,000 or more, the powers and duties of a deputy clerk shall be exercised only in the absence of the clerk from the place where the clerk’s office is maintained, and only when either written direction has been given by the clerk to that deputy to exercise a power or the corporate authorities have determined by resolution that the municipal clerk is temporarily or permanently incapacitated to perform that function. In municipalities with a population of 500,000 or more, the powers and duties of a deputy clerk shall be exercised upon the direction of the clerk, or when the corporate authorities have determined by resolution that the clerk is temporarily or permanently incapacitated to perform those functions and duties. When a deputy’s signature is duly authorized as provided in this Section and is affixed by a deputy in the manner prescribed in this Section on any document (including but not limited to contracts, bonds, or other obligations of the municipality), the document shall have the same effect as if the document had been signed by the municipal clerk in person.
(Source: P.A. 87-1119.)

Emphasis mine. The voters rejected the last referendum attempt to make the position appointed because they want someone, elected and accountable to them, to attend every meeting including closed session.

Fourth ward alderman Brendon Gallagher referred to people who submit multiple FOIA requests as repeat offenders. He mocked citizens who exercised their rights under the Freedom of Information Act. Acting City Clerk, Diane Wright, reported that around 150 FOIA requests were made last year. Many of those came from commercial interests often for real estate information due to foreclosures. She said citizens often file FOIA requests. She forgot to mention that the media often files FOIA requests. As do organizations dedicated to open government.

No one should apologize or be ridiculed for exercising their right to know. And something just isn’t right about an appointed administrator while on the payroll advocating for {or against} a position on a matter being discussed by the city council as a potential referendum initiative, no matter how frustrating not being able to control the office is for him and his department heads.

But maybe the mayor and city council has a point. What if incompetency is allowed to win the popularity and beauty contest called democracy? Well, worst case scenario might be getting an elected city council graded an F by the appointed staff the council graded an F.

Wait. In November when voters may choose whether or not they want the city clerk elected or appointed they’ll also be conducting a popularity and beauty contest for President of the United States. Oh my.