Hinsdale-Area Agency: 'Sensitive Matters'

HINDALE, IL — The attorney for a Hinsdale-area sewer agency is defending its board's vote to lay off three employees in April without giving any notice to the public and its decision to discuss the matter behind closed doors.

The Burr Ridge-based Flagg Creek Water Reclamation District is responding to a complaint filed by DuPage County citizen watchdog Edgar Pal. He became aware of the matter after a Patch story about it.

Pal contends the board violated the state's open meetings law by failing to give the public notice about its plan to vote on layoffs at its April 10 meeting and unlawfully discussing financial issues behind closed doors. The agency serves all or parts of Hinsdale, Elmhurst, Darien and Burr Ridge.

In Flagg Creek's response last week, attorney Donald Rothschild said any "perceived or technical violation by the district was not intentional and merely an oversight in the drafting of the agenda." He did not directly answer the issue of why the board took action on an issue that was not listed on the meeting agenda, as required by the Open Meetings Act. The agenda, which listed a closed session and a budget review, gave no indication members would take any kind of action.

Pal alleged the board discussed the layoffs behind closed doors, which he said was not allowed under any of the exceptions to the Open Meetings Act. However, Rothschild said a closed discussion of dismissals was allowed under the law.

"The main reason of the closed session was to allow both the Board and Senior Management to speak freely and openly related to these sensitive matters," Rothschild said in his response.

Under the law, dismissal of "specific" employees can be discussed in closed session. But that does not extend to budgetary issues about whether to keep employees. And the law contains no exception for "sensitive matters." In fact, the word "sensitive" appears nowhere in the Open Meetings Act.

Rothschild also said the meeting was closed because of "potential litigation" that could result from the separation agreements with the three laid-off employees.

The attorney's response itself indicated the discussion had nothing to do with specific employees' private issues. "The act of dismissing the employees was for business reasons to reduce cost and increase productivity as recommended by supervisory staff," the attorney said.

Pal responded to the attorney's letter by noting an attorney general's opinion that closed door discussions about specific employees must be related to performance, not the budget.

Pal also said the open meetings law includes no exception for "potential litigation." The law's exceptions are for litigation that is pending, probable or imminent. Despite Flagg Creek's position, he said, "the separation agreements serve to prevent litigation between parties separating 'on an amicable basis.'" He said the attorney general also has found the law does not allow government bodies to close doors to discuss the "distant possibility of litigation."

In his response, Rothschild said the board's decision caused no harm to any public or private interest, adding the three workers were at-will.

Pal disagreed.

"On the contrary, there is significant public interest in how public funds are allocated, especially during a public hearing in the midst of financial challenges," Pal said. "There is also a public interest in the board's discussion of the compensation of public employees, and the termination of public employees, provided that openness does not cause an unwarranted invasion of a specific employee's privacy."

Now, the attorney general's office must determine whether Flagg Creek violated the Open Meetings Act.

In a recent interview, Herbert Stade, the Flagg Creek board's president, said the board relied on its attorney's advice for how it handled the layoffs.

"We certainly want to be open and transparent," he said. "We haven't had anything like this come up in years. We have always tried to do the right thing."

Within an hour after the board's vote on the layoffs, Burr Ridge police were on hand while the three were informed of their terminations. No problems occurred.

Flagg Creek's records show that all three board members have taken required Open Meetings Act training.

Read more about the issues involving the Flagg Creek layoffs:

Area Sewer Agency Secretive On Layoffs
Did Area Sewer Agency Break State Law?
Area Sewer Agency Subject Of Complaint
Burr Ridge-Area Agency's Agreements Ban Criticism