History ignored, lessons repeated

Mine was one of the 4785 ballots cast for DeKalb city clerk but it didn’t have Steve Kapitan’s name checked. I’ve lived in the 3rd ward for many years and I never voted for Kapitan. I even voted for Vic Wogen. Too many philosophical differences.

It wasn’t a surprise to read that Kapitan couldn’t type minutes fast enough. I thought his managerial skills would be stronger but he reduced his department by one full time employee and lost an apprentice-trained top assistant, Liz Peerboom. That kind of stripped him of managerial duties when it came to typing minutes for closed session meetings (and there are lots of them). Open session meeting minutes were timely but Diane Wright, part time, usually provided clerical assistance. Her hours are limited. Budget restrictions must have prevented other department’s clerical staff (or software) to transcribe audio files to text for the closed session minutes.

What Kapitan lacked in typing and managerial skills he more than made up for in bargaining. The City Clerk voluntarily resigned an elected position and received some $10,000 in severance pay. I googled “severance pay for alderman” and except for articles related to DeKalb there weren’t any. City attorney Dean Frieders said that state law didn’t prohibit it.

The mayor and the seven aldermen didn’t discuss or vote on the severance package in public session but Mayor Povlsen said he thought Kapitan’s severance package was best for the community and for Kapitan. I agree with the latter.

Kapitan may not have been a typing whiz or managerial league slugger but he may have been thrown under the bus, voluntarily.

City of DeKalb under Attorney General Public Access Counselor review for possible FOIA and Open Meeting Act violations

In September 2011, Mark Biernacki used the under $20,000 policy (20K Rule) to bring in an independent contractor, Klein, Thorpe & Jenkins, Ltd. (KTJ), to survey the city council and staff about property maintenance and rental housing challenges. A September 14 letter from KTJ to the city, outlined the scope of the work.

At the start of a November 2011 Safe/Quality Task Force meeting members expressed dismay that the city had unilaterally brought in a consultant to work on some of the same issues the Task Force is addressing, namely property maintenance code enforcement issues. CityBarbs editor, Lynn Fazekas, regularly attends the Task Force meetings. She filed a FOIA request that asked for the contract between the city and KTJ among other things.

From CityBarbs…

The Illinois Attorney General’s Office of the Public Access Counselor notified me this week that its staff will review the denial of a related Freedom of Information Act request. As I mentioned in the comments section of the post, DeKalb denied last month a FOIA request for records involving communications between Klein, Thorpe and Jenkins and city staff. The city claimed an exemption under attorney-client privilege in its denial. The exemption states:

(m) Communications between a public body and an attorney or auditor representing the public body that would not be subject to discovery in litigation, and materials prepared or compiled by or for a public body in anticipation of a criminal, civil or administrative proceeding upon the request of an attorney advising the public body, and materials prepared or compiled with respect to internal audits of public bodies.

Except that KTJ was clearly hired as a consultant, not as a legal representative. The letter describing scope of work says so, the mayor said so at the November Safe/Quality Task Force meeting, and now the Chronicle says so.

The above noted review is awaiting final determination of the Attorney General’s Office of the Public Access Counselor (PAC). The last contact Fazekas had from the PAC on the KTJ FOIA denial was dated January 4, 2012.

A second PAC request for review was filed by Fazekas when she believed the city may have violated the Open Meetings Act either in fact (i.e., discussing the hiring of the police station architect in closed session on or about November 14) and/or in spirit (setting up meetings with two aldermen at a time with an unknown, private agenda). In response the PAC requested both verbatim and written meeting minutes from closed sessions including November 14. They have also asked the city to explain the circumstances of any other meetings where the architectural firm was discussed.

On the possible OMA violation the last contact Fazekas had from the PAC was dated January 11.

“Strangely — in view of the most recent events in which the City Clerk has been said to have gotten behind on closed session meeting minutes — the Clerk’s/City’s response to the PAC mentioned sending to the PAC draft meeting minutes of the closed session in question, that of November 14,” said Fazekas.

From the Daily Chronicle:

[DeKalb City Attorney] Dean Frieders met with DeKalb County State’s Attorney Clay Campbell to request assistance, review the situation and ask for help with a resolution. After that conversation, Frieders talked with Kapitan, who chose to take a short leave of absence, Frieders said. Kapitan resigned Friday.

“Based upon the city’s commitment to this issue, the fact that the city council brought this issue to the state’s attorney to request assistance and the city council’s forthright actions, and also based upon Mr. Kapitan’s resignation, it is our understanding that the DeKalb County state’s attorney has determined that no litigation will result from this matter at this point in time,” Frieders said.

A message left Tuesday evening with Campbell was not immediately returned. On Monday, Campbell told the Daily Chronicle he and the head of his office’s civil division met Thursday with Frieders.

Neither Clay Campbell or John Farrell been in contact with Fazekas about her PAC request for reviews. That has her concerned.

“I am somewhat dismayed about their involvement, because it might result in the PAC’s abandonment of its investigation in favor of local enforcement,” explained Fazekas. “In previous cases involving the City of DeKalb, such as the Wogen bid scandal and the DeKalb Public Library’s alleged pattern of misuse of closed sessions, participation by the State’s Attorney’s office resulted in very little action or even clarity of the issues in those cases, in my opinion.”

Just a couple of years back the DeKalb Public Library purchased with contingencies property from the DeKalb Clinic which included the old downtown clinic and A&P grocery store buildings. The contract was approved in closed session. The Daily Chronicle took exception. DeKalb County Online filed for a request for review of numerous potential OMA violations including the closed session contract, meeting with independent contractors in closed session and discussing the library’s tax levy in closed session. The PAC ruled the request for review legitimate. Then State’s Attorney John Farrell proactively met with the library’s attorney and brokered an arrangement with the library board. A decree was signed by Judge Kurt Klein who commented that the Open Meetings Act was too complicated for good folks like the library board to follow.

As soon as Farrell contacted the Attorney General’s office to notify them that he was looking into the case the PAC office notified me that they would no longer pursue the matter due to his involvement. At a candidate’s forum held at the Egyptian Theatre, then candidate Clay Campbell blasted Farrell’s involvement.

When I read the Chronicle’s report on the Kapitan resignation and the State’s Attorney’s involvement I sent Clay Campbell this email dated Feb 8, 2012:

Mr. Campbell;

I have questions of public concern regarding the well covered resignation of Steve Kapitan as city clerk for DeKalb. Published reports indicate that John Farrell and yourself were consulted by the DeKalb city attorney in order to get your assistance in a matter of compliance with the IL Open Meetings Act.

Is the City of DeKalb currently under review by the Attorney General’s PAC for potential open meetings act violations? Were closed session minutes and digital recordings requested as part of that review?

Has the AG been notified of the State’s Attorney’s assistance in this matter? Did the DeKalb County State’s Attorney’s office recommend or require Steve Kapitan’s resignation?

Since this matter involves the resignation of an elected official, with severance, is your office going to make a public report of facts pertaining to this incident?

Thank you for your time and consideration in this matter and for your service to this community.

Mac A McIntyre, Editor
DeKalb County Online

I have not received a response or acknowledgement of receipt of the email.

Doomed to repeat? Closed sessions, independent contractors and the 20K Rule have been a constant source of deserved criticism for the City of DeKalb.

• The 20K Rule was used to hire the independent contractor services of retired police lieutenant Jim Kayes to help develop and then manage a proposed rental licensing, inspection and nuisance ordinance. The matter was discussed in closed session which appears to be in violation of the Open Meetings Act.
• The 20K Rule was used to pay for the city’s share of an architectural rendering of a proposed new library on the DeKalb Clinic properties.
• The 20K rule was used to pay for the independent contractor services of then 3rd Ward Alderman Victor Wogen who eventually resigned from office. It is not known if he received a severance package. After public outcry reached an uncomfortable level for the mayor and city council the $20K rule was reduced to $10K. It was later restored to $20K.

Using the 20K rule for a severance package paid to Steve Kapitan for voluntarily resigning an elected position through a signed agreement drafted by the city attorney that includes a condition of silence on matters under review of the Attorney General is disrepectful of the public. Moving the published agenda item of discussing the matter in public session to closed session is just plain rubbing it in. But that’s what the city council has chosen to do. That action invites another request for review by the Attorney General.