With its accusations, arguments and defenses, the five-hour Board of Ethics meeting on Sept. 2 served as a backdrop for the continuing and public feud between City Clerk Devon Reid and some members of City Council – in this instance, Mayor Stephen Hagerty.
The Mayor appoints residents to many boards, committees and commissions. With vacancies on the Board of Ethics and the complaint against him in the pipeline, Mayor Hagerty did not appoint the three current members of the Board, Carrie Von Hoff, Clark Chipman and Suzanne Calder; instead, in his absence, aldermen acting as Mayor pro tem on separate occasions made these appointments. Ms. Von Hoff served as chair of the Sept. 2 meeting.
Mr. Hagerty, by his lawyer Richard Boykin, also presented a timeline, which the complainants did not dispute:
August – October 2018: Mayor Hagerty repeatedly requests via email that Clerk Reid provide him with information about the increase in FOIA requests from approximately 700 in 2017 to a projected 1,400 in 2019. Mayor Hagerty’s request is initiated by a resident’s inquiry. Clerk Reid never responds to Mayor Hagerty’s email request(s).
Winter of 2019: Clerk Reid repeatedly demands that Corporation Counsel [Michelle Masoncup] grant him access to all attorney client privileged communication and FOIA’d police body worn camera video for non-arrested subjects. When the City Attorney refuses, he threatens to file a complaint with the Attorney Registration Disciplinary Committee (ARDC) if she does not comply with his demand.
April 12, 2019: Clerk Reid files a complaint with the ARDC seeking to have the former Evanston City Attorney [Ms. Masoncup] disciplined, or worse, disbarred. Subsequently, Clerk Reid notifies the City Council via email that he has sought to have the City Attorney investigated by the ARDC for refusing to meet his demand(s). As an aside, the ARDC found no wrongdoing by the former Evanston Corporation Counsel.
April 26, 2019: Deputy Clerk Eduardo Gomez, former Corporation Counsel, and Assistant City Attorney each report separate complaints with the City of Evanston Human Resources Department against public official Clerk Devon Reid. The complaints allege that Clerk Reid violated the Healthy Work Environment Policy. (Deputy Clerk Gomez complaint included allegations that Clerk Reid moved to terminate him upon his inquiry to join a labor union and that the Clerk’s Office was a hostile working environment. Corporation Counsel and Assistant City Attorney’s complaint included allegations of harassment, intimidation, and threats.) The Healthy Work Environment Policy must be read and signed by all employees of the city of Evanston. It is a very important policy of the city of Evanston.
Last November, Mr. Reid and Evanston resident Misty Witenberg filed complaints against Mayor Hagerty, alleging abuse of power and failure to show impartiality in these and other actions. After a jurisdictional hearing before the Board of Ethics in July, the three-person board found it would hear evidence on the following eight allegations in the complaint:
· initiating an investigation into employee complaints against [Clerk] Reid by retaining Robbins Schwartz when the City has never sought to punish other persons for engaging in “inappropriate workplace conversations” which do not expressly violate the City’s Workplace Harassment Policy;
· retaining outside counsel to investigate the complaints against Reid when the City has never retained outside counsel to investigate workplace harassment complaints in the past;
· seeking a criminal investigation against Reid when the City has never sought criminal investigations against City officials or senior staff for any reason;
· failing to provide independent counsel to Reid during the independent investigation;
· failing to provide Reid with an opportunity to defend himself by withholding pertinent information against him, including the identity of the complaining witnesses and the substance of the complaints against him;
· re-assigning Reid’s staff after he issued an internal memo notifying the City of a possible OMA [Open Meetings Act] violation in 2017;
· retaliating against Reid for his refusal to comply with the Law Department’s directives to close certain FOIA {Freedom of Information Act] requests and his complaint to the ARDC [Attorney Registration and Disciplinary Commission];
· directing Reid to cease and desist the filing of a complaint against [then-Corporation Counsel Michelle] Masoncup.”
There were several other allegations in the complaint, but Board noted in its finding, “However, the Mayor’s legislative and political actions are not subject to the BOE’s scrutiny. The BOE’s purpose is not to be a pawn in political maneuvers between the Mayor and City Clerk or to be an unauthorized board of appeals for all legislative decisions of the City Council. Rather, the purpose of the BOE is to evaluate, make findings of fact, and issue advisory opinions for the City Council on questions of possible unethical conduct or conflicts of interest, and to interpret the Ethics Code consistent with the State ethics statutes.
For Mayor Hagerty, Mr. Boykin denied all the allegations.
Twenty minutes before the 7 p.m. start time of the Sept. 2 meeting, Ms. Witenberg filed a motion asking for an injunction to stop meeting from being held and for judicial review of the complaint.
At the beginning of the meeting, Iordana Wysocki, who serves as outside counsel to the Board of Ethics, said she had just received the motion. She said she would forward it to the board members but recommended that they ignore it.
Ms. Wysocki said she did not know whether the motion had indeed been filed; later in the meeting Ms. Witenberg provided proof that it had been filed; the next day she provided the RoundTable with a copy of the complaint, file-stamped at 6:39 p.m. on Sept. 2.
Ms. Witenberg attended the meeting, held via Zoom, but said she would not participate. The motion alleges that the way the board and its procedures are structured deprives her and Mr. Reid of due process.
“I filed the motion for judicial review to get a hearing date,” Ms. Witenberg told the RoundTable. “We are objecting for several reasons. We want this complaint heard on the merits.”
Motions, objections and interruptions punctuated the next five hours of the meeting.
If there was a centerpiece to that hearing, it is the antipathy between Mr. Reid and Mr. Hagerty.
Mr. Boykin moved to exclude Mr. Reid’s and Ms. Witenberg’s documentary evidence. With Ms. Calder and Mr. Chipman voting to deny the motion, Ms. Von Hoff said, “I will vote yes. … We will deny the motion with respect to the exhibits.”
Mr. Boykin then moved to exclude the complainants’ witnesses – Mr. Hagerty, Ms. Witenberg and Assistant Corporation Counsel Alexandra Ruggie – on the grounds of timeliness and relevance.
Ms. Von Hoff said that while Ms. Ruggie was not at the meeting, “with respect to Mayor Hagerty, he is present tonight. And so to the extent that he has relevant testimony, my personal feeling is to allow him to testify.”
Mr. Boykin said he would put his objection to Ms. Witenberg’s testimony “on the record.”
After a roll call vote, Ms. Van Hoff announced, “The decision of the board is … to allow Mayor Stephen Hagerty to be a witness to the hearing and the remainder of the witnesses designated by the complainants to be excluded at this time.”
Mr. Boykin said, “Quite frankly, I’m going to object to Mayor being called for three reasons. One … Clerk Reid seeks to basically make this important hearing a political sideshow. He is interested not in winning on the merits of this case, but rather he seeks to trap the damage or embarrass the mayor for some personal political gain of his own. Second, the Mayor is under no legal obligation to answer questions from the Clerk. Now, that being said, Madam Chair, he is willing to answer questions from this board of ethics or from counsel Wysocki. But he’s not going to answer questions from Clerk Reid. That’s, that’s, fallacy. …
“I’m just saying to you, I’m not going to make the mayor available to Clerk Reid. I mean, I’ll make him available to the board. I’ll make him available to Counsel. But I won’t make this is not a political sideshow. This is not going to be a political circus. … That’s just the bottom line: He is not available.”
Clerk Reid responded, “I’d like to make a motion to subpoena the Mayor. … The Mayor’s testimony is the cornerstone of this case. … Without the Mayor’s testimony, how can we move forward with this case?”
Ms. Van Hoff said, “To clarify … we’re not we’re not preventing you from questioning the mayor. We are, I guess, organizing it a little differently. … I think that the concerns raised by Mr. Boykin are valid there. The allegations in the complaint do touch upon a lot of political issues, and this board has … made the decision that those are not part of what is before them. I think that I think that’s a legitimate concern. … I understand that you’ve just made a motion for the board to subpoena or to issue a subpoena. That’s not even something we can get done tonight.”
Mr. Reid said, “Mayor Hagerty acted with bias; he did not act impartially in violation of Section 110 four of the Evanston City Code in various actions that he took against myself. … We plan to prove that today through our documented evidence and witness testimony. … So with that, I will call Mayor Hagerty as my first witness.”
Ms. Wysocki said, “I think Mr. Boykin has already made clear that Mr. Hagerty will not appear during your case. So go ahead and move on.”
Mr. Reid said, “I have the right to a hearing where I can. I’m entitled to a hearing where I can present witness testimony. And so that is what I’m seeking to do at this point. I feel like I’m repeating the same dance.”
He said he felt Ms. Wysocki and the board were representing the Mayor and were not being impartial.
With an uneasy compromise in place, the hearing continued.
Mr. Reid questioned City Human Resources Director Jennifer Lin and Mr. Hagerty about their roles in deciding to investigate allegations against him. He said the City had hired outside counsel to investigate claims against employees only four times in the past 15 years.
Although she declined to participate in the hearing, Ms. Witenberg was a catalyst for some of the public discord when on July 16, 2019, she published on her website, Evanstonleads.com, leaked documents from the City Council’s July 8 executive session.
In Mr. Boykin’s opening narration of events on July 16 and July 22, 2019, he states, “In a brief, spontaneous meeting with the Mayor at Panera the Clerk insists that the leak of this information must be investigated. The Mayor agrees that this is extremely troubling. The Mayor also mentions to the Clerk that at that time he had not yet released the Robbin Schwartz letter to the State’s Attorney. …
“Robbins Schwartz sends Misty Witenberg a cease and desist letter demanding that she remove and destroy the Attorney Client privileged communication and highly confidential information she posted on www.evanstonleads.com. … Ms. Witenberg responds on July 22nd. She refuses to remove the material. …
“July 18, 2019: The State’s Attorney receives the Robbins Schwartz letter regarding concerns about official misconduct by the Evanston City Clerk, Devon Reid.”
By email, the State’s Attorney’s Office verified to the RoundTable that it had received and reviewed the complaint and “concluded that the information was insufficient to support the filing of criminal charges.”
On July 17, 2019, Mr. Boykin’s narrative continued, “Mr. Reid was arrested for an outstanding warrant issued by the Illinois State Police alleging he failed to appear before a Judge in Will County Circuit Court two times.
“Due to Clerk Reid’s July 17th arrest by the Evanston Police Department, Mayor Hagerty requests another investigative authority, the Cook County Sheriff’s Department, to investigate official misconduct in Evanston related to the release of the 6 confidential July 8th executive session package.
“He does so because, and I’m quoting from his letter, ‘this extraordinary act of misconduct … undermines the public’s trust in its government.’”
Mr. Boykin took Mr. Hagerty through other elements of his defense: then-City Manager Wally Bobkiewicz, not the Mayor, decided to engage an outside law firm, Robbins Schwartz to investigate the matter; that the City Council directed Robbins Schwartz to over to the State’s Attorney its evidence of possible official misconduct.
Board of Ethics members after a brief executive session took the matter under advisement. The matter will likely be discussed at the board’s October meeting and findings issued in November.