Evanston Alderman Violated Open Meetings Act: Attorney General

EVANSTON, IL — The chair of the City Council's Rules Committee violated the state's Open Meetings Act and the city's own rules by improperly limiting public comment during a meeting in December, according to a ruling issued Tuesday by the Illinois Attorney General's Office.

Ald. Judy Fiske has represented the 1st Ward since 2009 and chaired the Dec. 3, 2018 meeting of the Rules Committee. According to the attorney general's office, 19 members of the public signed up to take part in the portion of the meeting allocated for public comment.

At the start of the meeting, without explanation and, apparently, without having counted the number of speakers, Fiske declared she would be effectively cutting the time set aside for citizen comment to roughly half of what city rules require.

"We've got...two pages of folks signed up to speak, so everyone will get one minute," Fiske said at the start of the meeting.

The Illinois Open Meetings Act, or OMA, requires all public bodies provide the public with an opportunity to address public officials. Public bodies can set up rules, including limitations on the time, place and manner of citizen comment, but they must not unreasonably restrict the right to address public officials or the content of their the speech, according to the attorney general's office.

Evanston City Council rules establish the framework for public comment. Speakers may address the Council once per meeting for up to three minutes. If more than 15 people have signed up to speak, the mayor is supposed to allocate time among the speakers to make sure the total public comment period does not run longer than 45 minutes.

But at the December Rules Committee meeting, only 16 speakers chose to speak, and the public comment period lasted less than 23 minutes, the attorney general's office said.

More than half of those who had come to the meeting to speak would offer comments about findings by the Board of Ethics that 8th Ward Ald. Ann Rainey violated the city's ethics code. Rainey would cast the deciding vote not to censor herself at the meeting.

The day after the meeting, resident Clare Kelly filed a request for review with the attorney general's Public Access Bureau, which is tasked with resolving disputes involving OMA and the Freedom of Information Act. In her request, Kelly suggested Fiske "arbitrarily" limited public comments to one minute because she knew attendees planned to discuss the board of ethics ruling that recommended Rainey's rescusal.

"Residents were taken by surprise with such a short time allotment and most were not able to deliver [their] full messages," Kelly wote.

The following week, Assistant Attorney General Matt Hartman requested Fiske explain the committee's rules and how they are enforced. Specifically, the city's representatives should address whether it has any rules allowing for one-limit time limits, he wrote Dec. 10.

Fiske did not respond to the first letter from the attorney general's office, despite the law's requirement that she do so within seven days, both the city's law department and the state attorney general's office acknowledged.

On Dec. 27, 2018, Hartman's office sent a second letter, requesting the that the city respond to the request for review. City attorneys provided a written answer on Jan. 2 with a copy of the sign-up sheet and the city's public comment rules. When the law department did eventually respond, it did not convince the attorney general's office that Fiske had not violated the state law.

Attorneys for Evanston failed to provide any "explanation for why the chair's application of its rules to limit public comment to one minute per speaker was necessary to promote order and decorum at the meeting or to further any significant government interest."

"Further, it is unclear why it was necessary for the chair to deviate from the 45-minute maximum of public comment time set forth in its rules and limit public comment time to only one minute of comment per speaker when a less restrictive option was available," Hartman wrote in the determination. "Because 19 members of the public signed up to speak, the chair could have elected to provide each speaker with two minutes of public comment time, which would not have exceeded the 45-minute maximum of public comment time."

The response from the city's lawyers said Fiske "exercised her discretion under the Council's rules," and was motivated not by the anticipated comment of the citizen commentators but by a desire to end the meeting more expeditiously.

"Although public bodies have an interest in conserving time and ensuring that all interested parties have an opportunity to speak, the Committee may not unreasonably restrict public comment to accommodate its meeting schedule, particularly where a need for additional time between meetings may have been foreseeable," the assistant attorney general wrote in the March 26 determination.

A separate allegation from Kelly questioned Fiske's decision to invite Rainey's attorney, former alderman Art Newman, to speak for eight minutes outside of the public comment period. Hartman found that decision did not implicate OMA because it was outside of the period set aside for public comment.

All elected officials are required to be trained on the application of OMA. Fiske last underwent the training online in 2012, according to a certificate on file with the city.

At the Jan. 22 Rules Committee meeting, Fiske said she was not aware the committee had to follow the City Council rules regulating public comment.

"It was an issue I didn't realize," said Fiske, who has not responded to a series of questions about the incident.

City attorney Michelle Masoncup said the rules were "silent" on the topic of public comment in committee hearings, although they are explicit when it comes to the full council. She told the rest of the committee, which is comprised of every alderman and the mayor, that she believed "as chair, [Fiske] thought she had discretion to" cut the citizen comment period to less than was laid out in City Council rules.

A pair of prolific public commentators provided input at the Jan. 22 Rules Committee meeting discussing potential changes to public comment rules.

Community activist Betty Ester, of the Citizens Network for Protection, said people who make the effort to attend meetings and address their elected officials should be heard, but they should also stay to listened to other speakers and what members of the council may have to say about it.

"Because in one minute, two seconds, and stuff, I'm not going to get everything out, so I don't speak," Esther said. "And I know we talk about time, and 'We need to come home,' and, 'We want to go home' — please, that's kind of insulting, because the people came here and spent the time and want to hear."

Resident Ray Friedman said it would be an insult to members of the public if only a few showed up and were only allowed to speak for three minutes.

"If there's 50 people or 80 people to speak, of course you have to limit the time. I understand that. If there's one person to speak: c'mon," Friedman said. "My point is, what's more important than people speaking is us getting responded to. If you can figure out a way we can get some kind of responses or answers to our comments, I would be thrilled. It would cut out most of your aggravation, and the citizens' aggravation."

City staff were asked to draft a new set of rules to explicitly limit time set aside for comments from the public at committee meetings.

"I think what would make sense to me would have some sort of baseline amount of time, something significantly shorter," said 4th Ward Ald. Don Wilson. "I'm pulling a number out of the air, something like 20 minutes."

City Manager Wally Bobkiewicz said he and the law department would prepare a draft of new rules for the next Rules Committee meeting on April 1. The changes would apply only to the city's standing committees —Administration and Public Works, Human Services, Planning and Development and Rules — and not the 38 other committees created by the City Council.

Related: Ethics Board Suggests Aldermen Shouldn't Vote To Exonerate Selves