Open Meetings Act Plaintiffs Respond to City Council’s Proposed “Reforms”

Originally posted June 21, 2017

By Andy Thayer and Rick Garcia
Co-plaintiffs, Thayer & Garcia v. Chicago City CouncilNo. 2016‐CH‐09212
After insisting for months that it already scrupulously followed Illinois’ Open Meetings Act, the Chicago City Council is now scrambling to “reform” itself. 
Or more precisely, being forced to reform, trying only to appear to reform, while in fact doing very little of substance. As with police “reform,” education “reform,” parking meter “reform” and much else, Rahm Emanuel and his City Council allies have turned the word “reform,” a once noble term, into a swear word.
On Wednesday, June 21 at 9 am in City Hall Room 201A, the City Council’s Committee on Committees, Rules and Ethics will discuss the City Council’s proposed rules regarding public comment at its meetings.
Let’s be clear about a few things:
1.  Were it not for our lawsuit, the City Council would have continued its illegal practice of barring public comment, as it has done so at virtually all of its meetings since the Illinois Open Meetings Act was enacted more than 20 years ago;
2. Only when ordered to by a judge, did the Council “get religion” about allowing public comment. Now it is attempting to allow as little of it, and policed as to content, as they think they might get away with;
3. Even though our suit and a judge’s order are what spurred tomorrow’s actions, we only found out about the City’s proposed rules the way most others did:  through the press and the City Clerk’s website. At no time did the City or its attorneys bother to reach out to us or to our attorneys about whether their proposed “reforms” addressed at least in part our objections, let alone solicit our own suggestions for improvements; and,
4. We have communicated to the City Council through their attorneys that their proposed rule changes are still in violation of Illinois’ Open Meetings Act and are unacceptable to us. If the City passes them, they won’t be stopping litigation, they’ll only be inviting more of it. Council members should ask themselves if it’s better to waste more taxpayer money on lawyers, or do the right thing:  just follow the law and enact genuine reform.
Here are the several problems with the Council’s proposed rules (see R2017-389.pdf at the City Clerk’s website):
1. As we and others have previously commented, limiting public comment to 30 minutes total and a maximum of 3 minutes per person means that 10 people would be tasked with representing the voices of 2.7 million people. Most Chicagoans would probably agree that 50 council members and one mayor already do a poor job of that, let alone only 10.
The Council currently spends sometimes nearly two-and-half hours of its meetings on purely honorary resolutions, as it did at its April 19 (00:04:40 to 02:27:51) and May 24 (00:06:15 to 02:35:16) meetings. This is activity that could be moved to another venue or scaled back so as to make more time for public comment.
2. There are no rules making sure that even those 10 chosen ones are selected in a fair and transparent manner. This means that the Mayor and his allies could pack the roster with their chosen allies, just as they’ve previously packed the Council chamber seats so as to exclude dissenting voices from the general public. Like with police reform, they’re saying “trust us” and we’ll do better. Given their history of demonstrated contempt for transparency and democracy, only the most foolishly naive would think that this is a real reform.
3. Little commented upon, but perhaps most chillingly, Rules #3, 4 and 6 attempt to illegally, and unconstitutionally, govern the content of speakers’ comments. Specifically,
* Rule #3 states that speakers will “limit his or her remarks to the subject matter appearing on the agenda of the meeting.” Section 2.06, subsection (g) of the Illinois Open Meetings Act states simply that “Any person shall be permitted an opportunity to address public officials under the rules established and recorded by the public body.” It does not give said officials license to violate the 1st Amendment of the Constitution by governing what is said.
In recent weeks we’ve already seen the deleterious effect of allowing Council members to determine what is, or is not, appropriate subject matter. At a recent Zoning Committee meeting, for example, Alderman Solis repeatedly interrupted and talked over a public commenter who attempted to point out how real estate industry contributions to aldermen were corrupting how city zoning decisions are being made.
* The latter part of Rule #6 allows the chairman to “allow reasonable variances from the three-minute time limit in appropriate, non-discriminatory circumstances.”

Just what constitutes “reasonable”? At the November 1, 2016 meeting, one of the few in the history of the Council that allowed public comment, the President of the Civic Federation was bumped to the front of the speakers list, as the chair announced that the Civil Federation President “has a long time history and tradition of being our first witness at our public hearings and I think he is here to support our budget today.” (01:56:35) The Civic Federation President, who admitted that “our primary funding comes from mentors that are executives at some of the major corporations, institutions and service firms” – i.e., the city’s 1% – spoke and was questioned for well over an hour. All other speakers were admonished to keep their remarks to within 3 minutes. Opponents of the budget were shunted to the very end of the speakers list, when only a handful of aldermen, and certainly not a quorum, remained in the chamber.
* Rule #4 prohibits speakers from using “profane language, obscene conduct, or disruptive comments.” Disruptive comments?!? Talking about campaign contributions influencing legislation is apparently considered “disruptive.” This amounts to what is known in constitutional law as a “heckler’s veto,” and banning “disruptive comments” has been ruled unconstitutional over and over again. Certainly these prohibitions don’t apply to Aldermen who stand on top of their desks and berate their fellow council members at the top of their lungs. Nor to elected city officials who always confine themselves to speaking only the King’s English.
In summary, the Council’s proposed rules amount to an attempt to illegally and unconstitutionally stifle Chicagoans’ voices in what purports to be “their” government.

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