On March 21, 2022, the City of Geneva released some closed session minutes. These minutes recently obtained via a FOIA request raise disturbing questions. This essay compares and contrasts prior City of Geneva declarations with what was said in secret. Two annotated documents and a meeting video are posted here as references.
The Illinois Open Meetings Act begins with the premise that all public business should be transacted in the open for public scrutiny. For understandable and good reasons some discussions should be confidential, but closed meetings are never required. One absolute requirement is that any action must be taken by a formal vote in an open session. The Act requires that the exceptions be construed strictly and narrowly: “The Provisions for exceptions to the open meeting requirement shall be strictly construed against closed meetings.” 5 ILCS 120/ Open Meetings Act. (ilga.gov)
Two OMA exceptions focus on public body property transactions: “5) The purchase or lease of real property for the use of the public body, including meetings held for the purpose of discussing whether a particular parcel should be acquired.” and, “6) The setting of a price for sale or lease of property owned by the public body.” Clearly, exception 5 has no relevance to the sale of the Emma’s Landing City-owned parcel. The motion made to enter a closed session on August 26, 2019, was recorded in the minutes as this: “Closed Session on the Setting of a Price for Sale or Lease of Property Owned by the Public Body.” This was a good start, but it was a Trojan Horse.
The ultimate irony in all this is that when the Ordinance creating the Planned Unit Developed Special Use that is Emma’s Landing was formally passed by the Geneva City Council and duly recorded with the Kane County Recorder, the City listed Joy Nelson as the owner of the parcel, not the City. This is inexplicably bizarre and still stands, rendering the whole process suspect. The solution to the riddle involves a procedural grease gun (vide infra).
The City of Geneva does not take the Open Meetings Act seriously. A motion to enter closed session should cite the exact chapter and verse of the Act’s exemption being invoked. Two issues should be considered: does the exemption cited meet the “strictly construed against” test. If it does, is secrecy needed or desirable? Secrecy is never required by the Act. An example from the set of closed session minutes here presented is the discussion about the old library building. Exemption 5 clearly is applicable. But the old library building is owned by another public body. An open deliberation would have better served the public’s interest. The old building remains as a sunk public asset and is a public liability.
Below are two questions the City posed to itself in July 2020 in a document titled “Just the Facts: Lewis Road Property Donation for Affordable Housing, Updated July 10, 2020.”
“When did the City declare the Lewis Road parcel [Emma’s Landing] surplus and decide to make the property available for affordable housing?
On Nov. 18, 2019, the City passed Resolution 2019-97 reconfirming the determination from 2013 and authorized the City Administrator to advertise and negotiate any proposals for the purchase of the property, including monetary and in-kind considerations, subject to acceptance of any
contract proposal by the City Council. The Resolution further stated that “Contract proposals that proffer an ‘affordable housing’ project are encouraged and will be evaluated as a City preference.” A Notice of Sale was published and posted on the City’s website requesting proposals for the property by Dec. 4, 2019. “
False. On August 26, 2019, The Geneva City Council held a closed session during which, from the minutes, “The Mayor indicated the consensus tonight is whether the council is willing to consider selling the land, selling the land at a reduced value, or using the land as an investment to encourage development. [City Administrator] Dawkins indicated that it appeared there were no objections from the council regarding any of the options and staff could begin conversations with the Burton Foundation.” The Mayor and City administrator inferred that two City Council actions (one was the “willing to sell,” the other the “to the Burton Foundation”) occurred during the secret meeting. Neither conclusion can be construed as “setting a price for sale or lease.”
“How many proposals did the City receive for the Lewis Road property?
In 2019, the Burton Foundation was the only proposal received for the property.”
False. During the same secret meeting of August 26, 2019, referenced above is this: “[Economic Development Director] DeGroot stated that the City has been approached by two developers regarding affordable housing sites; namely the Lewis Road site. Burton Foundation offered a letter of intent to build 49, 2-story townhome units with an initial offer of $700,000 for the City’s property. An additional letter of interest from MVAH Partners out of Ohio was also received, for the same property but with I-story units and a more diverse mix of income levels. Discussion centered on what type of development would be more attainable.” The concept of selling a public real property asset does not meet the “strictly construed against” requirement of the “sell or lease price” exemption 6.
Finally, during the June 7, 2021, City Council Meeting, the extension of the Burton Foundation contract arose. Mayor Burns said this per the minutes: “Burns clarified that, to correct the record, that the city administrator did not grant the extension without consultation with the city council as Nelson had alleged.” Here is the video – begin at about the 50 min mark to get the flavor.
This is what actually happened on the contract extension issue according to the Closed Session Minutes of January 19, 2021 (see document 1 above):
“The meeting’s goal was to determine if there were objections from the Council to granting this extension before Administrator Dawkins granted it, which she had authority to do… Mayor Burns noted that the meeting’s goal was to determine if there were objections that constituted a majority to extending the contract. Ald. Marks objected, several other Ald. stated they did not object, and no other objections were noted. Ald. Kaven asked what specific reason was given for the delay. Burns and Dawkins related that a 180-day limit is standard in such contracts and that the city has extended it in other contracts when the need arose. Burns added that a variety of issues had arisen, most notably the Covid pandemic which has impacted most aspects of doing business.”
Thus, almost a year after “Nelson” raised concern over the Burton contract extension, “Nelson” learns that Dawkins (allegedly) “had the authority to do so” and did it, then asked for permission illegally during a secret session called under a motion citing a non-existent OMA exemption: “CLOSED SESSION REGARDING THE SALE OF REAL ESTATE PROPERTY, Moved by Ald. Bruno seconded by Ald. Marks to adjourn to closed session.” ONLY THE SALE PRICE CAN BE LEGALLY DISCUSSED IN SECRET. Only official action by the City Council taken in open session can materially alter a governmental contract. “Consultation” ratification by a “majority” not objecting is not an action defined in state statute or municipal code. Geneva’s City Hall has been infested with January insurrectionists.
A “consultation” cannot abrogate Illinois law. A city administrator does not rule with the advice and consent of the City Council. In fact, a city administrator serves at the pleasure of the city council. Unauthorized alteration of a City of Geneva contract has Rita Crundwell vibes, even if it was done the “Geneva Way” with a wink and a nod from the mayor.
The mayor’s reference to Covid is shamefully reminiscent of Rahm Emanuel’s “You never let a serious crisis go to waste. And what I mean by that it’s an opportunity to do things you think you could not do before.” In his perpetual emergency proclamations, the Governor advised postponing non-urgent actions until normal face-to-face open meetings could resume.
Geneva had an offer on the table of $700,000 for the land and 49 units. MVAH Partners, a much larger LIHTC housing developer with many more than one employee, never came to Genevan’s attention until now. The City Council finessed the $700,000 down to $586,000 and sweetened the deal with fee and permit kickbacks and a grease gun in the form of an all-Burns-appointees puppet plan commission. Obviously, Burton also got an early secret guarantee that the “process was greased” since speed was of the essence to meet the Illinois Housing Development Authorities’ required deadlines for awarding millions in Low Income Housing Tax Credit grants. Hence the series of ambushes over the land donation issue and the myriad of procedural violations and improper secret decisions not allowed under the Open Meetings Act.
For the record, the Geneva City Council, in the process of breaking the community’s trust, gave away for nothing its most valuable asset, its credibility.
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