"Illegal" Council Actions: Does It Matter?

Two actions of the City Council on Wed., May 7 have raised eyebrows and concerns about their propriety. One was the motion to table consideration of a motion that would seem to have stopped (at least for now) consideration of the 708 Church St. "Tower" project. The other was the non-noticed "executive session" that apparently approved City Manager Julia Carroll's accelerated departure. Warning: the following extended post has been rated "W" for extreme wonkiness; parents should exercise discretion.

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The Improper Motion to Table
Possibly only parliamentary procedure aficionados could get exercised about this first, but it bears discussion. What happened was that, at a special meeting of the Planning & Development Committee, while Ald. Wynne's motion to deny the developers' application for a special use was pending, a motion to table was passed. Why is that bad?

Well, as Evanston attorney Robert Atkins has explained in a May 9 letter to Ald. Holmes, this was a special meeting, called for only one reason, and the motion was an inappropriate delaying tactic. It would be "out of order" for a couple of reasons under Robert's Rules of Order to use a tabling motion to squash discussion of Ald. Wynne's motion. Mr. Atkins's letter, which erroneously attributes the motion to Ald. Jean-Baptiste but otherwise seems spot-on, is viewable in its entirety here. The motion was further inappropriate because it set a duration for the tabling, until an uncertain future event, the Plan Commission's approval of the Downtown Plan.

So Ald. Moran's motion could have been ruled out of order. However, the City Attorney had already told Ald. Holmes, chairing the meeting, that whatever she ruled would govern. No one raised a point of order to question the propriety of Ald. Moran's motion to table (only the question of what motion took precedence), and Ald. Holmes ruled only that the (nondebatable) motion to table came first. OK. Still awake? Now, the question is, so what? And what should be done?

Frankly, I am still not clear as to whether Robert's Rules applies to a P&D meeting. Let's say it does. If a City Council doesn't follow its own rules, yeah the action is probably illegal, but that doesn't necessarily mean that a court would invalidate it. See, for example, Illinois Gasoline Dealers Ass’n v. City of Chicago, 119 Ill.2d 391 (1988). And what would it take to force a decision anyway? A citizens' lawsuit asking a court to order the P&D committee to take the motion off the table?

As I wrote one activist, it doesn't help anyone to get bogged down in a debate over Robert's Rules at this point, and just makes Evanston look silly. There are a couple better answers. Mr. Atkins suggests that someone at the next meeting of P&D (Monday night) should move to take "off the table" Ald. Wynne's motion. That would work. It's a nondebatable motion requiring a majority vote. Another route would be for one of the 5 who voted in favor to move to reconsider the motion to table. A third route would be for Ald. Holmes, as chair, to reverse her prior ruling, and rule that the motion was out of order. Any of those 3 would get everyone back to Ald. Wynne's motion.

Obviously, one of those should be done, for a couple of reasons. First and foremost, consideration of the proposed map and text amendment to the zoning ordinance is the reason the special meeting was called. Second, all P&D is doing is making a recommendation. In theory, P&D could recommend "no" and the Council could still vote "yes." In reality, that has seldom if ever happened since P&D expanded to include all 9 members of the Council -- here, someone would have to vote to recommend no, then vote to ignore their own recommendation (I am not saying the aldermen are incapable of such gymnastics, and arguably weirder things have happened, but on its face it seems unlikely). One would think that regardless of what P&D does, what still needs to happen is for the ordinance to be moved, and fail to get the requisite 6 votes, unless there is a Council rule (and I admit I haven't reviewed this) saying that if P&D votes no, the matter doesn't even go up to the Council.

The third, overarching reason why this should come to a vote is that the net result is still sort of the same, but putting it to a vote makes it more legal. The intended effect of the motion to table was to put the consideration of the Tower later in time than the adoption of the Downtown Plan. Voting the Tower down now has this effect: the Downtown Plan will be finalized, and then the Tower developers can still come back with a revised proposal, but with the benefit of knowing what the Plan is (and probably having lobbied to tailor it to their project). Would they lose time? Yes. And it would have to go back through zoning analysis and site plan review. But unless I'm mistaken, there would not be increased carrying costs, because neither 708 Church nor the Hahn Building have changed hands, the US Equities report indicated there are only options to buy. So the final outcome is not that much different, and the developers' hand is strengthened if a Plan supports what they want to do (although the Plan is likely to require greater setbacks, and more specific 'bonus density' triggers to get what they currently seek under the squishier 'public benefits' standard).

Note that the only reason the Tower wasn't considered in the Downtown Plan in the first place is that the Council ignored city attorney Herb Hill's advice and exempted the Tower from the moratorium on downtown construction.

So that's "Illegality #1," and I would be surprised if P&D and the Council don't manage to see their way clear to one of the above three routes to that outcome on Monday night.

The Impossible Executive Session
Now, what about that "executive session" Wednesday night? Reportedly, according to the Evanston Review, it was at a "hastily called executive session" on Wed. night after the P&D meeting that the Council approved Julia Carroll's request to advance the date of her departure up to Monday, May 12. One problem: "executive session" is something that the City Council adjourns to from a City Council meeting -- and there was no City Council meeting. No City Council (as opposed to P&D, which does not have the power to hire or fire or grant requests for leave) meeting was on either the online or posted paper notice of meetings for Wed., May 7.

Section 1-5-3 of the City Code says that the meetings of the City Council shall be open to the public, and that even a hasty "special meeting," which can come from either the Mayor or 3 aldermen, must be in writing, signed by the callers, noticed by the City Clerk. (Ord. 125-0-81).

Since no such meeting had been noticed, any such meeting was illegal, and any action taken at it probably void (as well as subject to disclosure under the Open Meetings Act).

Now, having said that, the question again arises: So what? Does that mean that Julia Carroll's resignation is not effective tomorrow, and someone should ring her buzzer over at Sherman Plaza and tell her to get over to the Civic Center and report for work? Should someone file a lawsuit and try to get a court to void the speeded-up departure date?

No, what it means is that, had proper procedure been followed, a special meeting would have been called for either Thursday or Friday, and the same thing would have happened. So, yes, at most a technical illegality -- but in the "no harm, no foul" category, since the practical effect is nil. In fact, it is possible that the Review has it wrong and no such meeting actually occurred. The aldermen did not stay in the room long. No minutes of any such meeting are referenced on the city website. Possibly some smarter mind figured out, "Hey, we can't do this," and the matter was put over until the regularly-scheduled meeting tomorrow night (which an executive session on the agenda).

The point of the above is twofold. First, the City would likely profit, both in terms of efficiency and greater public trust, from greater adherence to its own rules. Yet, as citizens, rather than focus on the technical wrong, we should try to keep in mind the ultimate practical effect, also bearing in mind that everyone involved in this larger conversation about city government -- aldermen, meeting chairs, corporation counsel, staff, the media, and even us plain old citizens -- are human beings, and will make errors. It's difficult enough to expect the aldermen to put in the time on reading the packets and transcripts and preparing for meetings, plus answering constituent communications, attending ward meetings, etc., without berating them for not always being experts on parliamentary procedure. We need to distinguish between garden-variety mistakes, which all of us make, including mistakes of judgment, and intentional breaches of the public trust.