Watchdog Sues Elmhurst Over Closed Meeting

ELMHURST, IL – The Elmhurst City Council on Tuesday approved the release of a recording of a 2020 closed session that the attorney general deemed illegal.

In comments after the vote, Mayor Scott Levin said the city still believed it acted properly. But he said the city's practice was to follow the attorney general's nonbinding opinions.

The latest opinion was in response to a complaint filed by citizen watchdog Edgar Pal.

Pal argued the city violated the state's open meetings law when the council closed its doors in November 2020 to discuss a nursing home's permit to expand.

In early July, the attorney general's office largely sided with Pal. It said the council could discuss behind closed doors the legal strategies related to probable litigation, but not the permit itself.

On Friday, Pal sued the city for the release of the recording.

Levin said the lawsuit was filed, even though the city informed Pal it would discuss the release of the recording Tuesday.

Levin said that given the lawsuit, he questioned whether Pal was acting in good faith.

"In a meeting with our attorneys today, we considered defending that lawsuit to prove our point," said Levin, a lawyer himself. "And we talked about that in executive session about whether we should defend that lawsuit. In the end, we decided the attorneys' fees that would be incurred would not justify the effort."

In an email to Patch, Pal noted the City Council was not obligated to follow the attorney general's opinion.

Pal pointed to the part of the state's Open Meetings Act that requires someone to file a lawsuit within 60 days to maintain the legal effect of an attorney general's opinion.

The deadline for the lawsuit was Sept. 3, which passed without any council action.

"(I)f litigation had not been filed by September 3, then the Attorney General's opinion would have lost all legal effect," Pal said. "By the time the City Council voted on September 6, they would have had full knowledge of whether they were being sued within the statutory timeframe."

He said the recording still has not been released, so it is unclear what parts will be redacted.

Patch filed a public records request for the recording Wednesday morning.

In his comments, Levin said the lawyers for the nursing home, Elmhurst Extended Care Center, had threatened to sue the city if it did not extend the home's permit.

He also said the city considered suing the nursing home in 2020 to get a temporary restraining order to prevent any construction work.

Because of these developments, Levin said, the city could exercise the litigation exception to the open meetings law.

He said the city could also assert attorney-client privilege, which he called "sacrosanct to protect the rights of attorneys and their clients."

After the attorney general opined in July, Levin sent a letter asking the agency to reconsider. In late August, the attorney general's office reaffirmed its decision.

A couple of years ago, the city internally debated about whether the expansion at the nursing home at 200 E. Lake St. had technically begun. The project was approved in 2018, but the permit was repeatedly extended, upsetting neighbors.

During the November 2020 closed session, officials said, then-Mayor Steve Morley asked aldermen for their thoughts on the project.

A majority agreed with the city attorney that the nursing home had met the "substantially underway" standard. The attorney cited the amount of money spent on the building drawings, purchase of a building permit and the erection of a construction fence, among other things.

But the project missed one critical element – ground was never broken.

Late last year, the city revoked the permit.

Pal has repeatedly prevailed over the city and the Elmhurst school board on government openness issues.