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13 July 2011 Steve Silverman Assistant Attorney General Office of the Attorney General Public Access Bureau 500 S. Second St. Springfield, IL 62706 RE: Reply to McHenry County response to 2011 PAC 14722 Dear Mr. Silverman:

Northwest Herald 7717 S. Route 31 Crystal Lake, IL 60014 815.459.4040

Daily Chronicle 1586 Barber Greene Road DeKalb, IL 60115 815.756.4841

Several members of the McHenry County Board seem to have learned a trick to avoid the requirements of the Illinois Open Meetings Act [5 ILCS 120]. If allowed to stand as legal, it would give the state's 7,000 units of government a powerful new tool to circumvent the Act and its mandate that the public's business be conducted openly. In this case [Request for Review 2011 PAC 14722], five board members met privately to discuss alternatives to a redistricting map set to be discussed and voted upon later that morning by the committee in charge of the process. This private meeting included a majority of a quorum of said committee. When the group realized this, they decided to rotate two of those committee members out of the room so that there was never a majority of a quorum at any given time. In his June 30 response to my request for review, County Board Chairman Ken Koehler wrote that, "There was no intent to avoid the obligations of the County Board Members under the Open Meetings Act. In fact, we immediately attempted to abide by the strict letter of the law upon realization of a potential violation." I beg to differ. Essentially, the county's argument boils down to the fact that rotating members out to avoid the legal definition of a meeting is not specifically proscribed by the Act. The authors of the Act never intended to allow for a handful of board members to clandestinely meet in such a manner, with the intent of altering the boundaries by which we elect our leaders. I respectfully submit that it is in the public's best interest for the Attorney General to issue a binding opinion concluding that swapping out one or more members of a public body to avoid the mandates of the Act violates the law.

Kane County Chronicle 333 N. Randall Road Suite 2 St. Charles, IL 60174 630.232.9222

Lake County Journal 34121 N. Route 45 Suite 224 Grayslake, IL 60030 847.223.8161

Business Journal EI Conquistador Great Lakes Bulletin The MidWeek Valley Free Press McHenry County Magazine Kane County Magazine

The Legislative and Intergovernmental Affairs Committee, a seven-member standing committee of the 24-member board, developed a redistricting map over numerous open meetings. County and state governments must adjust their legislative boundaries following every decennial U.S. Census. The legislative committee agreed on a tentative map May 12, and set a May 26 date to vote to forward it to the full board for approval. Sometime in between the two dates, board member Anna May Miller, who is not on the committee, approached Koehler and asked him to convene a meeting with other board members who, like her, may have had concerns about the proposed map. About an hour before the May 26 legislative committee meeting, Koehler met privately with fellow board members Nick Provenzano, Marc Munaretto, John Jung and Tina Hill. Miller could not attend the meeting, but sent her husband Robert, a Republican precinct committeeman like herself, in her place. Provenzano, Munaretto, and Jung are members of the legislative committee. Three members of a seven-member committee constitute a majority of a quorum, and therefore an open meeting under the Act. The decision was made for Jung and Provenzano to "alternately attend" the meeting. Jung left first while Provenzano talked about the proposed map. When Provenzano was finished, he left the room and sent in Jung. Koehler wrote in his response that it happened "at least once." From this private meeting, the members developed an alternate map. (Koehler wrote in his response that Anna May Miller developed the map for the group to review. But Munaretto wrote in a June 9 email that he and Robert Miller developed the map, which was "subsequently modified based on input from both Provenzano and Jung at the meeting called by Koehler." That email is attached to this document.) At the open legislative committee meeting that followed, Munaretto instructed the county's geographic information system staff to generate the map and make copies. This alternate map was discussed at length, but ultimately rejected in favor of the committee's original proposal. Because the original map was moved forward on a 4-3 split vote, the committee instructed Munaretto to email the alternate proposal to all 24 board members for consideration. At the next legislative committee meeting June 9, several members alleged that the private meeting violated the Act. The full County Board at its June 21 meeting approved the official map and soundly rejected the alternate proposal. Several opponents cited the questionable circumstances surrounding its development.

PERCEPTION If some board members had concerns about the map and had changes in mind, why not just attend the open meeting and discuss them? Obviously, such discussion would have to take place in open session. No exception to the Act [5 ILCS 120/2(c)] covers the redistricting process. But a little bit about some of the changes proposed in the alternate map, and a bit about the private meeting's attendees, is sufficient to raise skepticism or concern. It must first be noted that this private meeting involved representatives from only four of the County Board's six districts, namely the more urbanized ones that changed under the redistricting proposal. Representatives from the other two districts, which are more rural and were unchanged because they already met the new population requirements, were not invited. One of the proposed changes in the alternate map would have put several heavily developed precincts - in a town where population jumped 324 percent in a decade from 5,730 residents to more than 24,000 - into a district that is predominantly farmland and open space. Several of the private meeting's attendees have significant real estate and land development interests. Likewise, the rural district's four representatives have historically fought encroaching development. Was this an honest effort at a better map, or an effort to shift the balance of power on the board by getting more development-friendly members elected in the rural district? Most of the private meeting's attendees are heavily involved in county Republican politics, including the legislative liaison for the McHenry County Republican Party chairman. Were some of the changes meant to keep municipalities and townships whole, or to aid re-election efforts by increasing voter bases or denying them to potential rivals? We can't answer either question - as Koehler acknowledged in his response, there were no minutes taken at this alleged non-meeting. The people of McHenry County have to take Koehler and other attendees at their word. If the motives of the private meeting's attendees were altruistic, then why the secrecy? THE LAW Two long-established precedents help the courts clarify gray areas in statute.

The law requires statutes to be construed according to their intent and meaning, taking into account the reason for the enactment and the intentions of state lawmakers. Illinois National Bank v. Chegin, 35 III. 2d 375 (1966); et al. Also, interpretations that will produce mischievous or absurd results should be avoided. Chegin; Illinois Attorney General Opinion $-647 (1973); et al. Both precedents support my case that the private meeting violated the Act.

Lawmakers made their intentions very clear in the introductory policy section ILCS 120/1]. The Act's intent is to "... ensure that the actions of public bodies and that their deliberations be conducted openly," and that citizens" ... shall advance notice of, and the right to attend all meetings at which any business is discussed or acted upon in any way."

of the Act [5 be taken openly be given of a public body

Lawmakers never intended for public bodies to be able to skirt the Act by rotating members out to avoid a majority of a quorum. And I have more than made my case that such an interpretation is absurd, to say the least. The Illinois Supreme Court decisively ruled in favor of openness and transparency when confronted with a similar situation more than 30 years ago. People ex rei Difanis v. Barr, 83 III. 2d 191 (1980). In that case, a majority of a quorum of the Urbana City Council held a private political caucus at a member's home hours prior to a scheduled council meeting. Caucuses are exempt from the Act, but the members also discussed numerous matters of council business, much of which would be discussed and acted upon that night. (As an interesting note of similarity, among the issues was a new ward map, which was approved on the nine-member bloc's vote.) The Illinois Supreme Court upheld the rulings of the lower and appellate courts that the meeting violated the Act, concluding that its "clearly enunciated public policy would be poorly served were we to carve out exceptions other than those expressly stated in the Act ... where, as here, public business was deliberated and it appears that a consensus on at least one issue was reached outside of public view." Justices upheld that the Act imposes reasonable and necessary restrictions on public officials, "or else the people risk having their business done in secret, with the possibility that private deals will supplant the public interest" (78 III App. 3d 842, 845). The Illinois Supreme Court's opinion likewise negates Koehler's other argument that the alternate map "was always intended to be brought forward" for public debate: "... the Act is designed to prohibit secret deliberation and action on business which properly should be discussed in a public forum due to its potential impact on the public. Thus, the items discussed in the meeting in the instant case regarding a new ward map ... not only concerned public business but were scheduled to be dealt with that very evening [author's emphasis]." Koehler and the other attendees of the private meeting had several legitimate options available to them to "abide by the strict letter of the law." They instead interpreted the Act on the side of secrecy, in clear opposition to its intent.


If it is legal for a public body to meet in secret, with neither public notice nor recording of
minutes, by alternating attendance to avoid a majority of a quorum, the Illinois Open Meetings Act is all but worthless. For example, at the same time that the legislative committee was addressing redistricting, two other McHenry County Board committees were debating whether to undo a pay freeze and give all 942 nonunion county employees a 2 percent raise. This was debated publicly, and rejected in the face of overwhelming opposition from constituents struggling in a bad economy. With this new trick McHenry County leadership learned, much of the public debate is taken out of the equation. A secret meeting is convened with select committee members, and a plan is developed as participants "alternately attend". The public doesn't learn about the raises until much later, voters don't have time to express their concerns, and the raises pass. This is not a trick that we want to teach the state's 7,000 units of government. A ruling in favor of the county would give many of those governments carte blanche to handle controversial or unpopular issues in private. To be fair to the full McHenry County with the private meeting as I am. The management was concerned enough Illinois Open Meetings Act, to include Board, many of its members appear to be as displeased standing committee in charge of board rules and to arrange a July 19 workshop for all members on the a representative from your office.

The public would be well-served by a binding opinion that it violates the Act to swap out members to a oid a majority of a quorum.

K vl P. Craver Senior Reporter, Northwest Herald

Printed by: Kevin Craver - SSM Title: Meeting: Shaw News

July 7, 2011 3:32:04 PM Page 1 of 1

From: Subject: To:


June 9,201111:38:44



Meeting ~ Kevin Craver - SSM

Attachments: Kevin:




The May 26 meeting was called by Ken Koehler at the request of Anna Miller and Bob Miller to discuss concerns that constituents in D-1 had with the proposed remap. Mrs. Miller called and asked me to attend. I understood the attendees would include Koehler, Anna Miller, Bob Miller and Nick Provenzano.

I met earlier in the week with Bob Miller to discuss the relocation of the three northernmost precincts from Algonquin Township and he and I collaborated on a second generation map that I was prepared to take to the Leg. Comm. on May 26. This second generation map formed the basis of our planned discussion with Koehler and was subsequently modified based on input from both Provenzano and Jung at the meeting called by Koehler.


Who invited John Jung and Tina Hill to the meeting?


Have you spoken to Anna Miller? She informs me that she discussed the meeting with Tina Hill and learned that John Jung was asked to attend. Mrs. Miller suggested to Tina that there could be a potential for an open meetings issue.

3. As I noted, and John Jung confirmed at this morning's Leg. Mtg, when both Jung and Provenzano showed up at the meeting, I noted an issue with open meetings and both Jung and Provenzano agreed to alternately attend the meeting. Marc Munaretto

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