At the January 4th City Council meeting, Mayor Diane Marlin finally commented on the numerous Open Meetings Act (OMA) complaints filed against her and the City Council, as well as the lawsuit against her for repeatedly muting the public at meetings. She said that the City had received eleven OMA complaints, with five of those having been submitted by one person, and another five submitted by a second person.
OMA complaints are handled by the Public Access Counselor (PAC) at the Illinois Attorney General’s (IAG) Office. Even though Marlin and City Attorney James Simon touted the availability of the Public Access Counselor as a mechanism available to Urbana residents, the purpose of Marlin’s more recent statement seemed to be to demonize the individuals who elected to utilize the PAC review process. This is not the first time that Marlin and her staff have attempted to gaslight concerned Urbana residents.
Besides being wrong in her general posture, Marlin also happens to be wrong on the numbers – I have submitted far more than five OMA complaints, and I’m certain that more than three people have submitted complaints against Marlin and the Council.
The secondary purpose for Marlin’s statement was to claim that the PAC had determined that she and the Council had complied with the OMA in two recent reviews. I happened to know that one of those two reviews dealt with the March 23rd, 2020 meeting of the Urbana City Council, for which I’d filed a PAC request for review. This article will cover that meeting and the subsequent review process.
Public Input at the March 23rd, 2020 Urbana City Council Meeting
The March 23rd meeting was the first meeting that the City held where there existed no physical access for the public to attend. The City released a meeting agenda which made clear that the public would be able to give public input via Zoom, and they also released an additional document explaining how to use Zoom to give public input. The City claimed these documents were made public on March 20th, and it seems that the Assistant City Clerk modified the agenda on the evening of March 21st. The documents clearly state, “You will be able to use a computer to address City Council using Zoom” and various Council members promoted the public input option on various neighborhood email lists.
At the March 23rd meeting, when it came time for public input, Marlin read from a prepared statement, “Due to technical difficulties and the fact that this is a learning process for all of us, public input will be taken tonight via email.” That’s it. Marlin simply skipped any opportunity for the public to speak. The video of Marlin’s statement can be viewed here:
Urbana City Code Section 2-4 makes no mention of email or written public input, and makes mention of “speaking” out loud no fewer than seven times. Email as a sole means for public input, especially when other means were significantly advertised in the days before the meeting, does not satisfy the City Code or the provisions of the OMA. If Marlin truly believes that it does, then she could skip public input in the same way at any future meeting.
It should be noted that the Urbana Plan Commission, along with UPTV Coordinator Jason Liggett, held a meeting four days prior to the Council meeting and they were able to handle public input via Zoom just fine.
The City was using the standard version of Zoom for the March 23rd meeting, which means that all participants in the Zoom meeting are treated the same (as opposed to Zoom Webinar, which allows for “panelists”). Marlin and Liggett were able to mute and unmute Council members so that they could speak as needed, so there was no technical reason that members of the public could not also be allowed to speak in the same way.
I sent an email to Jason Liggett the day after the meeting, asking about the “technical difficulties” which prevented public comment. Liggett gave a very long non-answer, and I attempted to follow up with him to get an actual answer. I had to send seven follow-up emails over the course of nearly three weeks before Liggett answered me. Liggett wrote:
“In reference to the technical difficulties we had during the March 23, 2020 City Council meeting, Mayor Marlin did not have a monitor or computer in front of her and had not been trained to be a co-host on Zoom at that time.”
My complete email chain with Liggett can be seen here (click for full PDF):
The First FOIA Violation
On March 21st, when I heard that the March 23rd meeting would be closed to the public, I sent a Freedom of Information Act (FOIA) request asking for all documents related to the meeting and the decision to close it off from the public. Here is the exact text of my FOIA request, which I sent to City Clerk Charlie Smyth:
“On the agenda posted here: https://www.urbanaillinois.us/sites/default/files/attachments/03-23-2020_Agenda.final2_.pdf
it is written that “*Due to the Governor’s Stay at Home order, the Urbana City Council Chambers will be not be open to the public during this Council Meeting. “
I need any and all documents related to this statement. Any and all documents related to who made the decision, and how the decision was made. Any and all documents should be included, such as emails and text messages.”
Even though the request was fairly simple, Smyth gave himself a five day extension (which equates to a 14 day total response time).
Smyth finally provided records on April 6th, but the documents he supplied were clearly lacking and he had wrongfully claimed exemptions on a number of records. Smyth’s response conspicuously contained virtually no staff emails regarding the decision to move to a virtual format. On April 14th, I submitted a FOIA complaint to the PAC, and they determined that a review was warranted.
As a result of my FOIA complaint, on May 4th Smyth produced several pages of emails that he had previously concealed. In other words, Smyth realized he had been caught violating FOIA and the PAC was about to call him out on it. These were the important emails that I wanted, and which Marlin and Smyth did not want released.
The emails show that Marlin and Smyth had planned, on the morning of March 20th, to skip public input at the March 23rd meeting. Already knowing that they were going to skip Zoom input, Marlin and Smyth posted an agenda and public input instructions that informed the public that they would be allowed to give input via Zoom.
It is worth noting that I’d submitted my original FOIA request (exact text above) to Clerk Smyth on March 21st, and on March 20th he had just sent an email containing the following:
“We are going to need to sit on the agenda for Monday until as late as possible today. The mayor is only wanting public participation via email. The building will be closed and she doesn’t want to open it to the public at all, only for staff and council members.”
Smyth’s email was an exact match to my FOIA request, and having received my request just a day after he sent the email, he surely would have remembered the correspondence and realized that it matched my request.
The Second FOIA Violation
I had sent another FOIA request on March 27th, rewording my March 21st request to focus more on the “technical difficulties” that prevent public input. Again, Smyth gave himself a five day extension on a very simple request. On April 13th, Smyth provided me two pages of emails comprised solely of my previous email exchange with Jason Liggett. Again, it was clear that Smyth was violating FOIA, so I appealed to the PAC, and again the PAC determined that a review was warranted, which they initiated on June 10th.
As a result of that review, the City was forced to release additional emails which they had previously concealed. The new FOIA Officer, Curt Borman, provided these emails to me on August 10th. In their determination letter, the PAC also ordered the City to hand over Marlin’s prepared statement about the “technical difficulties”, which she read at the March 23rd meeting.
However, Borman wrote me back saying, “Executive Assistant to the Mayor and City Administrator Kate Levy consulted with Mayor Marlin and learned that the Mayor’s prepared statement was destroyed in compliance with the Local Records Act.”
The prepared statement was read on March 23rd and my FOIA request was submitted on March 27th. I am not aware of any records disposal law which allows a public official to destroy a document in such a short time span. I cannot imagine this was legal, but now that Marlin has reminded me of the situation, I will look into it.
This second FOIA request also failed to turn up the Marlin-Smyth emails, which Smyth certainly knew about and which were a perfect match to both FOIA requests. Keep in mind that the two FOIA requests I’ve mentioned in this article resulted in concurrent PAC reviews spanning over the course of five months.
The Posture of the Public Access Counselor
The City clearly violated FOIA multiple times, and the obvious reason appears to have been to conceal the fact that Marlin lied about the “technical difficulties” at the March 23rd meeting. Through the PAC review process, multiple concealed records were identified and made to be handed over to the requester. From time of request to PAC closing letter, this process took about five months for each appeal.
Did the PAC say that Urbana violated FOIA in their closing letters? No. This is the posture of the PAC – a train wreck of violations can slam into their office, and the PAC will go searching for reasons not to issue a meaningful determination. In this case, since Urbana eventually released responsive records after months of arguing, the PAC just administratively closed the reviews. By Marlin’s standards, she would argue in these cases that the City fully complied with FOIA.
The PAC is made up of attorneys, and they use very select language when writing opinion letters. They typically write things like, “violated the OMA” or “did not violate the OMA” at the beginning of their letter. For their review of the March 23rd Urbana City Council meeting, the PAC wrote, “the Public Access Bureau is unable to conclude that the City Council of the City of Urbana (City) violated OMA in connection with its March 23, 2020, meeting.”
The “unable to conclude” language, as far as I can tell, simply leaves the complaint open for a possible lawsuit. In their letter, the PAC did strongly urge the City to change multiple aspects of its meeting practices, which should indicate that the Attorney General is not pleased with how Urbana conducted itself.
My OMA complaint covered many issues, but we could look more closely at just one of them in order to better understand the PAC’s approach. In regards to the part of my complaint which argued that Marlin skipped public input, the PAC wrote this:
“In the absence of evidence that Mr. Hansen or any other individual attempted to exercise his or her statutory right to address the City Council at its March 23, 2020, meeting and was prohibited from doing so, this office is unable to conclude that the City Council violated section 2. 06( g) of OMA.”
Essentially the PAC is saying that even though it is clear within the video that Marlin skipped public input, there isn’t any proof that someone tried to give public input and was prevented from doing so. I did not realize with such a blatant violation that I needed to submit additional evidence to the PAC to prove that Marlin skipped public input. I suppose this evidence could have come in the form of a screenshot of me raising my hand in Zoom. I have learned that there are a lot of procedural trip-hazards in this process, and they are all situated to accommodate the public body.
The Arguments of City Attorney James Simon
More recently, both the public and the City Council are becoming more aware of the unethical tactics of City Attorney James Simon, in virtually everything that he touches. Simon gives no consideration to ethics when defending Mayor Marlin and her staff, which is jaw-dropping given that Simon also serves as the City’s “Ethics Officer”.
One position that everyone should find concerning is that Marlin and Simon seem to think that the events of March 23rd are allowed for in statute and in City Code, and are repeatable whenever the Mayor wishes. I do not believe that the Council and the public would agree that Mayor Marlin has the right to skip public input at-will.
Simon has also argued, in regards to the March 23rd meeting and in other PAC appeals related to meetings as late as November 2020, that the Mayor has skipped or cut short public input because of her unfamiliarity with Zoom. This claim has always been a lie, and there has never been any indication that Marlin was technologically incapable. Besides, Marlin has always had full-time UPTV Coordinator Jason Liggett available to handle everything.
The reader may find interesting these emails between Diane Marlin and Jason Liggett (click for full PDF):
In contrast with Marlin’s March 23rd statement, and with Simon’s ongoing claims, Liggett writes “I am all for a 100% virtual meeting. I don’t foresee any technical issues in doing so.”
We can also see that Marlin was learning enough about how to use Zoom that she learned about a facial softening feature which she liked. It would seem rather embarrassing for her to argue that she didn’t know how to fundamentally operate Zoom when she was spending time learning about Zoom’s facial softening features.
It should also be noted that I was not provided these emails in either of my FOIA requests mentioned earlier in this article. These emails were provided to me through a different source. This confirms that even after the PAC intervened, Smyth and Borman continued to conceal responsive records.
Conclusion
Marlin wishes to claim that the PAC indicated that Urbana complied with the OMA. Marlin’s exact words last week were, “The judgments of the Attorney General were the City of Urbana did not violate the Open Meetings Act.”
I find this statement to be dishonest. The PAC’s “unable to conclude” language may read as a victory for Marlin, but it is more of a testament to just how useless and inaccessible the Public Access Counselor can be. ProPublica concluded as much in their 2018 article which harshly criticized the PAC.
When you come to understand how the PAC actually operates, this “unable to conclude” language actually translates into something along the lines of “this looks pretty bad, but we’re too cowardly to touch it”. To go any further, the PAC would have had to venture into territory which may indicate that “The Honorable Mayor Marlin” (PAC’s words) is not so honorable.
Here are the facts from the March 23rd City Council meeting:
- Mayor Diane Marlin and City Clerk Charlie Smyth decided more than 3 days before the meeting to skip public input.
- After the decision to skip input was made, Smyth and City Staff produced agendas and public input instructions, telling the public that they would be able to give input using Zoom
- Marlin lied at the March 23rd meeting, pretending there were “technical difficulties” which prevented public input.
- UPTV Coordinator Jason Liggett avoided answering any questions about the “technical difficulties” because there were none, and he’d just said so himself in an email to Marlin.
- There never was any indication of “technical difficulties”, and the City could not produce a single document which indicated so.
- Marlin certainly violated FOIA, and almost certainly violated the Local Records Act when she destroyed her prepared written statement immediately after a FOIA request asked for it.
- Charlie Smyth violated FOIA twice, attempting to conceal emails which indicated the facts listed above.
- Marlin and James Simon have made arguments suggesting that they can repeat this sequence of events at any future meeting, and it would not be a violation.
I don’t find any of the conduct exposed in the article to be laudable for the Mayor in any way. On the contrary, this entire string of events should be seen as a grand embarrassment for Marlin, Smyth, Liggett, and Simon. The fact that the same City Administration argues that they did nothing wrong, and that they would be within their rights to repeat these events, shows just how upside-down things are in the Urbana City Government.