BLOOMINGTON — Elected officials violated the Open Meetings Act in 2017 when the Bloomington City Council gathered behind closed doors to discuss ending the Metro Zone agreement with Normal, an appellate court has ruled.
The three-member appellate court found that the city council did not comply with the act when it convened Feb. 20, 2017, for one hour and 21 minutes in a closed session over “probable litigation," because "absent from the closed session was any discussion of legal theories, defenses, claims, or possible approaches to litigation."
City Manager Tim Gleason in a statement emailed Friday said he's "making myself familiar with the case and the city is still reviewing the decision and determining next steps.”
Monday's ruling is the latest piece of fallout from the since-dissolved Metro Zone agreement. The Pantagraph was the first to report earlier this month that Gleason and Normal City Manager Pam Reece have been in discussion for weeks over at least $500,000 in unremitted sewer charges stemming from customers within the former zone.
The council during the closed meeting was weighing whether to pull-out of the Metro Zone agreement — a deal made with Normal in 1986 to share revenue and expenses stemming from development in an area on the municipalities' west-sides — and not litigation, which was the reason cited for convening the meeting.
"There were folks who thought that it was OK to use an executive session this way and there were other people who weren't in the room and were guessing that it might not have been," Chambers told The Pantagraph in 2017.
"So I thought it was prudent to get clarification. That's what the whole process is about. It's not about pointing fingers. It's about everyone knowing what to do going forward."
On June 26, 2017, then-Attorney General Lisa Madigan issued a binding opinion that the council violated the act. The city asked for a circuit court to review the binding opinion, which it reversed. The AG then appealed that ruling to the appellate court.
After reviewing an audio recording of the session, the appellate justices found that council members "did not reasonably believe that litigation was probable or imminent."
They pointed to one council member noting there was "no clear cut road" to litigation, another council member characterizing possible litigation as a “minor issue” and another calling a lawsuit threat from Normal a “negotiating tactic.”
The court also wrote that an unnamed Bloomington City Attorney — likely Corporation Counsel Jeff Jurgens, who was at the closed session according to proceeding records — also "warned the group at the commencement of the meeting about discussion of matters other than proper litigation topics" and "interjected during the meeting to remind the members again."
"Nevertheless, the group ignored these admonitions," Justice Peter Cavanagh wrote, adding that the council instead discussed two options — a joint resolution with Normal, or unilaterally ending the 30-year agreement — and "how to peddle the issues to their constituents."
Language used by the closed session attendees included: “may result in better public relations,” “Normal will savage the City,” “politically not palatable” and “we have talking points,” the court found.
The council also discussed suspending payments pursuant to the agreement, "whether a suspension would cost Bloomington more in the future, the perceived unequal payments Bloomington previously made under the agreement, whether the amount at issue was significant, and which of the options described would be the most economical."
Council members, Mayor Tari Renner, Jurgens and former City Manager David Hales all made comments on those options, the court wrote.
Renner, whose second term as mayor ends Friday, wrote in a text message to The Pantagraph that he had not yet read the court's opinion, and that he was "very anxious to see what rationale" the justices used.
"No matter what, the court was not 'on site' to see the nature of the conversations that led to the city council's decision," Renner said. "I guess I would respectfully disagree."
Cavanagh further wrote that six of the nine council members expressed concern about how their actions would be perceived by the public.
The language they used, he wrote, "covered the gamut of terms evidencing the concern for how to best handle inquiries and criticism."
Cavanagh also noted that near the end of the closed session, the council discussed timing, and an anticipated radio story. Renner also told reporters after the meeting that he doubted Normal would file suit.
"The only court the group seemed concerned with was the court of public opinion," Cavanagh wrote.
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Bloomington has until June 23 to decide whether to ask the Illinois Supreme Court to reconsider a ruling that the city council violated the Open Meetings Act when it gathered behind closed doors in 2017.
Alderman Joni Painter, left, Mayor Tari Renner, center, listen to Alderman Karen Schmidt at a March 25, 2019, Bloomington City Council meeting. The 4th District Appellate Court in Springfield has ruled that a closed-door council meeting in 2017 violated the Open Meetings Act.