DeKalb County State's Attorney weighs in on DeKalb City Clerk debate

In a letter sent by DeKalb County State’s Attorney Rick Amato to the city of DeKalb on Friday, Amato said the city should not pass ordinances to make the city clerk an appointed position because it is prohibited under the Illinois Constitution.

Amato said he's been contacted by several DeKalb residents and elected officials in the past few weeks, and decided to weigh in after Monday's preliminary first vote to remove the city clerk job, held by appointed Clerk Lynn Fazekas, from the ballot. The vote passed, 5-3, on first reading.

“The events on [Monday] demonstrate that the city is on the cusp of committing an egregious error in regard to the elected offices within the city, and in doing so, raising the need for my office to consider taking action to cease these developments before they damage your municipality further,” Amato wrote in the letter.

DeKalb City Manager Bill Nicklas deferred comment to city attorneys, but remains steadfast in his support of the proposed ordinances.

“We stand in a strong legal position,” Nicklas said Friday.

Attorneys debate state law

Amato said the city does not meet the criteria in state law 65 ILCS 5/5-2-12 through 18, such as having an at-large city council, to pass an ordinance to change the clerk position from elected to appointed.

City attorneys disagree, and said Amato’s interpretation is “limited.”

In a Friday response letter to Amato's office by city attorneys John Donahue and Matthew Rose, the attorneys argue ILCS 5/5-2-19 would give the city the ability to change the clerk's role.

The city attorneys said the law supports the proposed ordinances because it applies in an instance where a city does not exceed 100,000 residents, has a managerial form of government and is divided into wards with aldermen from each ward and an at-large mayor. DeKalb meets those criteria, city attorneys said.

Open Meetings Act

Amato said the Illinois Attorney General’s Public Access Counselor already has opened an investigation into a potential Open Meetings Act violation.

On July 22, the City Council held a closed executive session after which DeKalb Mayor Jerry Smith said he was directed by council consensus to ask Fazekas to resign, which she refused. The Open Meetings Act prohibits discussion of elected officials, and discussion of Fazekas violates that act regardless of her being an appointed clerk.

City attorneys argue the closed session meeting was not called to discuss Fazekas, but rather Deputy City Clerk Ruth Scott, who also works as the executive assistant to the city manager.

“The city properly held a closed session to discuss the employment of Ruth Scott, who had threatened to resign her employment due to the manner in which she was treated by the city clerk,” the letter from the city attorneys states.

Friday's state's attorney response isn't the only time Amato has expressed an opinion on DeKalb issues. In December, Amato hosted a town hall meeting with county and city officials and residents calling into question the city's past use of tax increment finance money. Amato's office is overseeing a forensic audit of past TIF-related expenses.

He ended his letter by calling into question the city’s preliminary passage of the ordinances, especially after two failed referendums on the issue, where residents expressed a desire to have the position remain elected rather than appointed.

“I feel it necessary to point out it is simply improper to bypass failed referendums and force a result through ordinance,” Amato wrote. “To do so without expecting the citizens of your community to seek answers is not only unrealistic, but is a disservice to them all.”