Illinois attorney general again rebukes DeKalb City Council for open meetings violation

DeKALB – Audio from an Oct. 25, 2021, closed section of a DeKalb City Council meeting depicts city leaders discussing the performance of City Clerk Sasha Cohen, a move the Illinois Attorney General’s Office said was a violation of state law related to open public meetings.

The opinion determined that the city of DeKalb violated the state of Illinois’ Open Meetings Act and is subject to a set of terms set forth by the Public Access Bureau of the attorney general’s office.

A complaint was filed with the attorney general’s office by DeKalb resident Mark Charvat, alleging the City Council violated the open meetings law by discussing the clerk in the closed 2021 meeting, according to documents obtained by the Daily Chronicle through the Freedom of Information Act.

In a July 13 email sent from the attorney general’s office to Charvat and DeKalb Mayor Cohen Barnes, Steve Silverman, bureau chief of the Public Access Bureau, admonished the council.

“This office concludes that the City Council improperly discussed the city clerk and recording secretary position in closed session,” Silverman wrote. “[...] This office requests that the City Council remedy that violation by voting to publicly disclose those portions of the closed-session minutes and verbatim recording.”

The audio recording, obtained almost a year after the October 2021 meeting by the Daily Chronicle, details DeKalb city leaders taking time to discuss the clerk’s performance in a portion of the meeting barred from public access. The conversation revolved around the clerk’s absence at several meetings and minute-taking performance only months after he was sworn in to office in May 2021.

The city of DeKalb had argued to the attorney general’s office that a closed session was allowed in order to discuss whether Cohen’s continued absences in the summer meant the elected office was made vacant, records show.

The City Council last year created a new position to aid what they called a slack in clerical duties usually performed by the city clerk, including what officials said at the time was inadequate record-keeping during public meetings.

When asked this week about the released audio recording and discussions on his performance, Cohen said he doesn’t participate in council meetings anymore.

“That move effectively rendered my presence at meetings an unnecessary duplication,” Cohen said. “It is ridiculous for two people to be sitting taking the same set of minutes when one’s are simply going to be ignored while the other’s will be passed without even being read during the council meeting. As such, I have been no longer actively participating in the City Council meetings, as I will not lend credence to their actions.”

It’s the latest in an ongoing dispute between DeKalb city leaders and the city clerk since he was sworn in in May 2021.

Closed meeting audio review

Second Ward Alderwoman Barb Larson said in the Oct. 25, 2021, closed meeting that the city clerk’s minutes are very detailed if it’s a topic he’s passionate about; otherwise, there’s no involvement, audio records show.

“It’s not like he has maybe issues of doing it or whatever,” Larson said in the recording. “He wants to do it. They’re there. The rest of the time, if he’s not involved, we get resolution number and nothing after that. I mean, it was glaring, the difference.”

A brief discussion ensued among the council about Cohen – who last summer apologized for his absence and neglect of duties, at the time vowing to remedy the situation.

But the quality of the clerk’s work remained in question, prompting the City Council to take remedial steps of its own.

When asked about his performance on the job this week, Cohen reiterated how he had asked for additional clerk training from the Municipal Clerks of Illinois but City Manager Bill Nicklas denied the request in August 2021, citing Cohen’s absence and what city leaders called Cohen’s lack of professionalism.

The city instead appointed city employee Ruth Scott as recording secretary to keep record of public meetings. Cohen is not barred from attending meetings or taking his own notes under the council’s action, however.

In the October 2021 audio recording, 4th Ward Alderman Greg Perkins called into question whether the council is doing right by the taxpayers.

“By duplicating the minutes, are we addressing the core issue?” Perkins said.

But 1st Ward Alderwoman Carolyn Morris had a theory that the council was making a difference. In the audio recording, she said she thinks the council’s actions draw attention to the clerk’s shortcomings while the solution – to appoint a recording secretary – doesn’t harm the elected office.

“I think we leave it in the community’s hands to say, ‘We don’t like this,’ ” Morris said in the October 2021 audio recording.

City response

Nicklas this week deferred comment to the city attorney.

City Attorney Matt Rose said the city doesn’t agree with the public access counselor’s opinion that the City Council had an improper discussion because “if the office of the clerk was declared vacant, we could have gone into closed session.”

“As the city attorney, I disagree with the reasoning in the PAC informal opinion, but we accepted it and we complied with the directive to release the executive session verbatim recording,” Rose said.

In the counselor’s opinion, Silverman said the city doesn’t have the legal authority, as a city-manager form of government, to remove a clerk from elected office.

Rose summed up the public access counselor’s opinion on the matter as “splitting hairs.”

“We couldn’t go into closed session to discuss whether the office was vacant or not, even though we had the power to declare the office vacant, and we had the power to discuss who would fill that vacancy if it was vacant,” he said.

It’s not the first time the city of DeKalb has been called out for violating the Open Meetings Act after discussing the clerk’s performance in a closed meeting. In 2019, the council also was required to publish audio recordings for a different closed session meeting when it discussed then-City Clerk Lynn Fazekas and the use of a stamp to notarize documents.