OAKWOOD HILLS – The Illinois Open Meetings Act allowed the village board last year to go into closed session to discuss a lawsuit filed by a resident over ownership of a strip of land.
The board's subsequent discussion of the six-figure annual hosting fee the village would get from a company that wanted to build a natural gas turbine power plant is another story.
Meeting minutes obtained by the attorney representing residents opposed to the plant's construction indicate that village officials likely broke the law on July 11, 2013, when they went from a topic covered by the Act to one that is not.
What's more, it would be another year before board members informed their constituents of the proposal to build the 430-megawatt, $450 million plant.
Attorney Steven Cuda has filed a complaint over the alleged violation with the McHenry County State's Attorney's Office, asking for prosecution of offending individuals "if appropriate".
"This puts [the village board] on notice that any discussion on this power plant has to be done in public. Other than that, it lets them know that the old way of doing things won't cut it anymore," Cuda said.
The Open Meetings Act limits the topics that public bodies can discuss behind closed doors. The law states that the exemptions are to be narrowly construed, meaning when in doubt, the meeting is open.
The law does not cover the discussion as described in the minutes.
Board members discussed the amount of money that Enventure Partners, based in Coral Gables, Florida, would pay the village.
The board had already rejected an initial offer from Enventure of $150,000 a year for 10 years, according to the minutes. The transcript also revealed that the village had negotiated $60,000 up-front to help pay for improvements to Rawson Bridge Road.
Another $750,000 would be paid upon the company opening the plant in 2017, followed by $150,000 a year "forever". Minutes also reveal that the board would ask for more money when the plant "[expands] ...to build another turbine."
Despite reforms strengthening the Open Meetings and Freedom of Information acts following the impeachment of former Gov. Rod Blagojevich, abuse of the closed-session exemption for litigation is still widespread, said Don Craven, attorney for the Illinois Press Association, of which the Northwest Herald is a member.
"That's anything. If a village board approves something, they could get sued. If they don't approve something, they could get sued," Craven said.
State law requires all Illinois elected officials to take yearly training on compliance with the Open Meetings and Freedom of Information acts. Village attorney John Cowlin, who according to the minutes attended the meeting, could not be reached for comment Friday.
The State's Attorney's Office has 60 days from the discovery of a violation of the Open Meetings Act to bring civil or criminal charges, Craven said.
Because the meeting in question did not appear to result in any action by the board, Craven said the most the office likely would be able to do is an injunction against future violations. An action taken in closed session can be declared void by a state's attorney.
Going to the state's attorney is the sole recourse for this particular infraction. While post-Blagojevich reforms now allow citizens to file complaints with the Attorney General's Office, the deadline is 60 days from the date of an alleged illegal meeting, not from the date of discovery.
State Rep. David McSweeney, R-Barrington Hills, called both the closed-session meeting and the content of its discussion "outrageous." McSweeney and Cuda said they found the comment at the end about the plant producing "clean energy" and having "no environmental impact" galling.
"I think this is another example of what a fiasco this has turned into," McSweeney said.
McSweeney and Sen. Dan Duffy, R-Lake Barrington, both oppose the power plant proposal and stepped in last month to ask Attorney General Lisa Madigan to force the village board to reopen village hall after they had closed it because of reported threats.
The Northwest Herald filed a FOIA request with Oakwood Hills for all police reports detailing any threats against board members or village employees, but no such records exist.
About this series
"No More Excuses" is the Northwest Herald's ongoing series about the public's right to know in Illinois.
On the Net
Visit http://foia.ilattorneygeneral.net to learn more about the Illinois Open Meetings Act.