On July 31, the Public Access Counselor (PAC) of the Office of the Attorney General issued two opinions that ruled on Misty Witenberg’s complaints that Evanston’s Board of Ethics violated the Open Meetings Act (OMA) in connection with its March 20 and June 19 meetings. The PAC found two violations of the OMA in connection with the March 20 meeting, but none for the June 19 meeting. The PAC did not overturn any decisions of the Ethics Board.
Ms. Witenberg, one of five people who ran for Fifth Ward Alderman in the April 2017 election, filed a 177-page complaint with the Ethics Board against Alderman Robin Rue Simmons. The bulk of the allegations relate to the City’s grants to Sunshine Enterprises to help facilitate business opportunities for low- and middle-income residents of Evanston, and Ms. Rue Simmons’ connection to Sunshine.
In October 2015, Ms. Rue Simmons, a member of the City’s Minority-Women-Owned and Evanston-Based Committee, made a presentation to the City’s Economic Development Committee on behalf of Sunshine.
In December 2015, City Council approved a grant not to exceed $50,000 to Sunshine to offer classes to small-business owners and startup entrepreneurs. It was contemplated that this funding would cover the period January-April 2016, and that based on results, funding would be provided to Sunshine for a three-year period. According to a Sunshine memo, Ms. Rue Simmons was an independent contractor of Sunshine between September and December 2015, and hired as an employee in January 2016. A portion of her salary was paid for from the grant.
On May 9, 2016, Sept. 12, 2016, and Jan. 9, 2017, City Council voted to award additional grants to Sunshine. Ms. Rue Simmons was not an alderman at that time, but remained an employee of Sunshine.
After Ms. Rue Simmons became an alderman, City Council, on Jan. 8, 2018, approved a payment to Sunshine pursuant to the Jan. 9, 2017, grant. Ald. Rue Simmons abstained from voting. Ms. Witenberg argued the Ald. Simmons was paid a significant portion of the grant funds.
Ethics Board’s Decisions
At their meeting on March 20, Ethics Board members heard testimony from Ms. Witenberg, Ald. Rue Simmons and Joel Hamernick, CEO of Sunshine. After deliberating in closed session about whether they had jurisdiction to hear any of the claims, the Board announced that it would hear the claim of a conflict of interest in connection with City Council’s approval of funding to Sunshine in 2017. The Board continued the matter for hearing on that claim to May 22.
The May 22 meeting was cancelled for lack of a quorum, and the matter was continued to the Ethics Board’s June 19 meeting. At that meeting, Ethics Board Chair Kelda Harris-Harty reviewed the complaint and proceedings to date and moved that the Board go into executive session to discuss the ethics complaint. After returning to public session, Board members heard public comments from Ms. Witenberg and three citizens.
According to minutes of the June 19 meeting Ms. Harris-Harty then read the Ethics Board’s “determinations” concerning Ms. Witenberg’s conflict of interest allegations. The Chair said the Board had previously ruled in a 2017 case on the conflict of interest allegations relating to the period before Ald. Rue Simmons took office.
With respect to the allegations covering the period after Ald. Rue Simmons took office in May 2017, the Board ruled that the City had awarded Sunshine a grant for a three-year term and Sunshine had provided services in 2016 and 2017. The Board found that Ald. Rue Simmons had recused herself from approving payment of the funds to Sunshine, which it said “is a reasonable solution to address the issue.” The Board also found, “In order for the City to meet its contract obligations after grant performance by Sunshine Enterprises, funds must be approved for payment.”
The March 20 Meeting and OMA Violations
In her complaint that the Ethics Board violated the Open Meetings Act in connection with its March 20 meeting, Ms. Witenberg alleged that the Board adjourned to closed session without a public motion or vote, that it took final action in closed session, that it failed to make a proper public recital of the business being conducted in closed session, and that it improperly restricted public comment.
The PAC, after listening to a recording of the public meeting, found that the Board publicly disclosed the exception on which it relied to enter into closed session, but it did not conduct a vote on whether to enter closed session as required by the OMA. The PAC noted that the Board represented that, “The City will ensure that a vote of each Board of Ethics member present will occur at the next meeting,” which seemed to satisfy the PAC on this issue.
The PAC also found that the Ethics Board prohibited public comment at the March 20 meeting in violation of Section 2.06(g), which provides, “Any person shall be permitted an opportunity to address public officials under the rules established and recorded by the public body.” The PAC said though, “There are no means by which the Board can remedy its violation of Section 2.06(g) in this instance. This office requests that the Board comply with the requirement of Section 2.06(g) at future meetings.”
The PAC rejected the claim that the Ethics Board made a final decision in closed session. The PAC said the Ethics Board reached consensus on jurisdictional issues in closed session, but held it was “a step in the process of reaching a final action, rather than final action itself.”
The June 19 Meeting and Alleged OMA Violations
In her request for review of the Board’s June 19 meeting, Ms. Witenberg argued that the Board took final action in closed session. The PAC found that after the Board announced its decision to dismiss Ms. Witenberg’s complaint, members of the public raised questions and concerns, after which the Board voted to approve its decision. While saying that “it appears from the recording that the Board’s open session vote would not have occurred without the objections raised by members of the public,” the Board did vote on its decision in open session, which was its final decision.
The PAC also rejected Ms. Witenberg’s other two claims.
After PAC’s rulings, Ms. Witenberg has continued to pose questions to City Council regarding Sunshine and related issues.