Office of the DeKalb County State’s Attorney

DeKalb County Courthouse 133 W. State Street Sycamore, Illinois 60178 General Offices: Tel: (815) 895-7164 Fax: (815) 895-7101

State’s Attorney

To: From: Date: Re:
Jeff Metzger, Chair DeKalb County Board Richard H. Schmack DeKalb County State’s Attorney December 12, 2012
Events at County Board Meeting – December 3, 2012


Questions have arisen regarding whether or not there may have been a violation of Robert’s Rules of Order, the Open Meetings Act, or both, at the December 3, 2012 County Board Meeting. It is the opinion of the State’s Attorney’s Office that there was not a violation of the Open Meetings Act. During the ten-minute period when the County Board stood “at ease,” the caucuses of the respective parties met separately, in full view of the public. It seems obvious, viewed in the context of the meeting, that the caucuses were discussing a purely political matter, being whether to stand on the nominees that each party had offered for Board Chair, or effect a change in strategy. In fact, the discussions of the board prior to the caucuses make it abundantly clear that they were searching for the appropriate method to break for a political caucus. Julia Fullerton even articulated that the purpose of the caucuses would be discussion of the parties’ nominations of chairman. The Illinois Supreme Court ruled, in 1972, that the Open Meetings Act does not apply to party caucuses, so long as the issues discussed are purely political. People ex rel. Difanis v. Barr (1980), 83 Ill. 2d 191. The Democratic caucus of the Urbana City Council, which constituted a majority on the council, was held to have violated the Open Meetings Act when it discussed public business, including a zoning request, at a closed party caucus. However, it is clear from the ruling that they would not have been in violation had they been discussing purely political matters. A 5-2 majority on the court stated that, “The Act is not intended to prohibit bona fide social gatherings of public officials, or truly political meeting at which party business is discussed, Difanis v. Barr (1980), 83 Ill. 2d 191, 202 and

Memo Jeff Metzger December 11, 2012 Page 2 of 3

further stated that, “Certainly a true political caucus is beyond the purview of the Act” Difanis v. Barr (1980), 83 Ill. 2d 191, 202. This decision remains good law, and has not been overturned. The two dissenters wanted to invalidate the entire Open Meetings Act as unconstitutional and certainly also believed it did not, or could not, prohibit party caucuses. Following review of the video of the County Board Meeting and consultation with my Civil Assistant, Stephanie Klein, my office is of the opinion that meetings of the party caucuses of the respective parties represented on the DeKalb County Board, while constituting a majority of a quorum, are not subject to any provision of the Open Meetings Act unless the members discuss public business. Generally, it is difficult to imagine anything they might discuss which would be purely political, and not public business, except for the selection of nominees, replacement of nominees, or a decision to name no nominees for the offices of chair and vice-chair. The election of these officials is public business, but a decision regarding names to be placed in nomination seems to be political and partisan in nature. Each party caucus is free to discuss political strategy either secretly or openly, as each sees fit, but it seems obvious that they are not required to discuss it openly, unless it involves public business. Because committee assignments are discussed at the pre-meeting party caucuses, it is appropriate that these be considered as open meetings, but the parties would be entitled to close them when discussing nominations for chair and vice-chair. Since the Open Meetings Act does not apply to party caucuses, when not discussing public business, it follows that the parties can conduct them ad hoc, without notice, so conducting them in a public place during a pause in a public meeting, does not make the Open Meetings Act applicable to them. Since the board could have adjourned without selecting a chair, and party caucuses could have held closed meetings during the intervening period, the Democratic and Republican caucuses cannot be faulted for conducting their political business more openly than the law requires. I am told that the adjacent meeting rooms were actually available that night for caucuses if needed, and such meetings have taken place at previous organizational meetings. This being said, it does appear that Robert’s Rules of Order were probably not followed to the letter. It would have been more proper to have conducted the caucuses during a “recess” rather than while “standing at ease,” because members are supposed to remain seated while “standing at ease,” but can move around while in “recess.” My concerns expressed that night about recess was not with the concept of recess itself but rather with the fact that the purpose of the recess was unclear. If the motion had clearly stated that the recess was to allow the party caucuses to meet separately to discuss party business that would have been acceptable. The tape indicates that the chair pro tem thought that that was the purpose, but some members made statements which led me to believe they might ultimately go elsewhere and meet as a

Memo Jeff Metzger December 11, 2012 Page 3 of 3

committee-of-the-whole in secret. This would clearly have been an Open Meetings Act violation, which I was concerned with preventing. The fact the caucuses were political and not governmental is borne out by the fact that the only result was the substitution of one Republican nominee for another, with no ultimate effect on the outcome of the election. The election of a chairman and vice chairman having been accomplished, and committees having been appointed, it does not appear that any purely party business remains to be done. If either party should wish to meet in caucus to discuss public business those caucuses would be subject to all the provisions of the Open Meetings Act. The issue of closed political caucuses should not arise again until the 2014 election for County Board Chair and Vice-Chair, barring a vacancy of one of those officers.

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