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Minutes - 03/08/2005 - Board of TrusteesMINUTES OF THE MARCH 8 , 2005 RESCHEDULED REGULAR MEETING OF THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF OAK BROOK APPROVED AS WRITTEN ON APRIL 12, 2005. 1. CALL TO ORDER: The Regular Meeting of the Village Board of Trustees was called to order by President Quinlan in the Samuel E. Dean Board Room of the Butler Government Center at 4:32 p.m. The Pledge of Allegiance was given. 2. ROLL CALL: Village Clerk Linda Gonnella called the roll with the following persons PRESENT: President Kevin M. Quinlan, Trustees Stelios Aktipis, George T. Caleel, Susan Chase Korin, Asif Yusuf and Elaine Zannis. ABSENT: Trustee John W. Craig. IN ATTENDANCE: Richard Boehm, Village Manager; Jeffrey Moline, Assistant Village Manager; Dale L. Durfey, Jr., Village Engineer; Bruce F. Kapff, Director of Information Services & Purchasing; Robert L. Kallien, Jr., Director of Community Development; Kenneth Kubiesa, Village Attorney; Darrell J. Langlois, Finance Director; Police Lt. Steven Larson; Michael J. Meranda, Director of Public Works; Nelson Patras, Interim Bath & Tennis Club Manager; Trey VanDyke, Golf Club Manager and Sean Creed, Golf Course Superintendent. 3. PRESIDENT'S OPENING COMMENTS: President Quinlan announced that he is submitting to the Board the name and resume of a candidate for the appointment of Police Chief. As soon as the Board feels it is available, they will schedule meetings, interviews or a simply a meeting to appoint or wait to the next regularly scheduled meeting of the Board of Trustees to do so. He also disseminated to the Board a press release. He stated that hopefully it will be the last appointment as the public has heard four names submitted to him in August for this position that were deemed to be acceptable to many members of the Board of Trustees. After interviewing many candidates, this individual is one of the four names submitted to him by the Board. His name will remain confidential until the Board has a chance to discuss this and whether they will agree to go ahead with the appointment. President Quinlan then remarked that at the Board meeting of February 22, 2005 there were some motions passed and he intended to return his vetoes of two matters passed by this Board and one matter passed at the March 2, 2005 Special meeting at the Board's regular meeting of March 8, 2005 at 7:30 p.m. He indicated that since this regular meeting has now become a special meeting because of the change in start time to 4:30 VILLAGE OF OAK BROOK Minutes Page 1 of 8 March 8, 2005 3. p.m., State Statute allows that the Village President may return these vetoes only at the next regular meeting which is scheduled for March 22, 2005. Nonetheless, he would announce the reasons for his vetoes now. To the extent, if at all, that the Board meeting is deemed a regular meeting, these vetoes are returned as of today's date and they have been recorded with the Village Clerk. As to the motions concerning a contract with an investigator to investigate the actions of the Village Attorney with regard to the Elmhurst Builder's litigation, his veto of those motions is based upon their creating a liability against the Village. Additionally, he believes the hiring of an investigator is ultra vires on the part of the Village since it is not within the statutory purview of the Village to investigate or discipline the Village Attorney. He suggested any such investigation should be conducted by the State's Attorney or Attorney Registration and Disciplinary Commission. Further, the motion approves employment of an attorney for the Village without his approval and in violation of Judge Bonnie Wheaton's injunction order of November 1, 2004. As to the motion directing the Village Clerk to employ a court reporter to transcribe two audio tapes of executive sessions of the Village Board on April 13, and May 25, 2004 which meetings involved discussions of possible settlement in the DuPage Housing Authority case, that motion also creates a liability against the Village. Additionally, in transcribing these audio tapes in the manner required by this motion, the Village will waive attorney- client privilege and confidentiality with regards to those Board executive session discussions and thereby allow the DuPage Housing Authority access thereto. This obviously would give the DuPage Housing Authority a significant advantage in that litigation. It is clearly not in the best interests of the Village to allow that to happen. Those views have been returned and recorded with the Village Clerk. Trustee Aktipis responded that he was happy that President Quinlan has taken this opportunity to nominate a Police Chief candidate which is one of the four candidates that the Board of Trustees proposed to him a long time ago. He commended the President for this action as taking a big leap forward in trying to resolve the problem which has lingered now for over six months and taken the Village into litigation as the result of President Quinlan suing the Trustees for their opposition for his temporary appointment of a Chief. The President has come a long way around the idea of the need to work together with the Board and he again commended him for this. Trustee Aktipis responded to President Quinlan's other comments regarding the Board meeting of February 22, 2005. He offered that this Board meeting was called properly by the request of three Trustees with a 48 hour notice prior to the meeting. It has always been the practice that the request for the meeting is communicated to the Village administration by telephone on behalf, in this instance, of two Trustees and by e -mail of the third Trustee. The meeting was called appropriately and, therefore, the Village Manager sent out a notice in a timely fashion which he would not have done if he had any doubts about the legality of the meeting. Therefore, he believes that the meeting was VILLAGE OF OAK BROOK Minutes Page 2 of 8 March 8, 2005 3. legally held and the Trustees at the beginning of the meeting indicated how it was called and that it was held properly. He is concerned, based on the information from the Village Manager, that President Quinlan instructed Manager Boehm to notify the Trustees of the cancellation of the meeting at 4:00 p.m. when he had earlier communicated to him the concerns of the so called legality of the meeting. He suggested that President Quinlan's reasons for delaying to notify the Board of the cancellation, until the last minute, of the meeting is not clear to him. However, by giving instruction to the Village Manager to withhold the notice of cancellation, he suggested that President Quinlan had attempted to draw Manager Boehm into the issue of the appropriateness of the meeting. He stated that the Village Manager has a very important role in the Village and it behooves everyone including the Village President to help him stay away from the implication of being involved in any events that interfered with the Board meeting of March 2, 2005 which was called appropriately. Trustee Aktipis stated that President Quinlan has complained that the investigation to determine whether or not Attorney Kubiesa should be referred to the Illinois Attorney Registration and Disciplinary Commission is not necessary. He stated, with all due respect of President Quinlan, that the position taken by the Village President is irresponsible. First, Trustee Aktipis suggested it would be unfair for the Board of Trustees to refer Attorney Kubiesa to a disciplinary body without an impartial and complete investigation. The Board must determine first whether or not a referral is warranted and appropriate before putting Attorney Kubiesa's name in front of an official disciplinary board. Secondly, it would be imprudent for the Village to take the step of referring Attorney Kubiesa to a disciplinary body without the legal protection afforded to the Village as a result of a possible recommendation of a well qualified investigator. Any other approach would not be prudent. There is a modest cost for this investigation. Trustee Aktipis stated, in his view, this cost would be tantamount to insurance costs for protecting Attorney Kubiesa and the Village from any liability. He remarked that reasonable people may disagree how to deal with matters of public interest as President Quinlan clearly disagrees with him but he has, as Trustee, the best interest of the Village in mind with the position he is taking. He believes that President Quinlan's position may be well meant but in his view penny wise and pound foolish. President Quinlan explained that he has issued the veto and the Board has plenty of time to discuss it at the next regularly scheduled Board meeting which by State Statute the Board is able to take any action they would like to take. In regards to the meeting held on March 2, 2005, he stated that the Village Manager has submitted a memorandum to the Board of Trustees that clearly stipulates three Trustees did not call requesting a special meeting. Trustee Aktipis indicated that he did not want to place the Village Manager in an untenable position but this matter needs to be clarified. In response to President Quinlan's comment that the Board meeting was a special meeting this evening, he indicated if that is the case, this meeting will have to be postponed until 7:30 p.m. which VILLAGE OF OAK BROOK Minutes Page 3 of 8 March 8, 2005 3. is the regular time of the meeting. He suggested that he cannot see how a regular meeting can be changed into a special meeting by simply changing the time. President Quinlan responded that he returned the vetoes accordingly today. Trustee Atkipis stated that President Quinlan returned the vetoes in a regular meeting of the Board of Trustees and by trying to change this meeting to a special meeting, the President is creating an issue. President Quinlan indicated the meeting is what State Statute calls it. Trustee Aktipis asked if the meeting was a regular meeting of the Board of Trustees. Village Attorney Kubiesa explained that in his legal opinion, it is a special meeting because the time was changed. Trustee Aktipis stated for that reason he would ask by motion that the Board meeting is carried out as scheduled at 7:30 p.m. Attorney Kubiesa indicated that this is not legal as a 48 hour notice is required to change it. Trustee Aktipis suggested they were entering into manipulations by President Quinlan so that he could get around the issue of returning his vetoes at a later Board meeting. He stated the Trustees responded in good faith when President Quinlan asked for the meeting to be changed to 4:30 p.m. President Quinlan noted, for the record, that Trustees Korin and Zannis asked for the meetings to be changed. Trustee Korin stated she did not ask for the meeting to change. Trustee Yusuf indicated that he requested the meeting be changed. President Quinlan apologized for the error. President Quinlan reiterated it was Trustee Zannis and Yusuf who requested the time change. Trustee Caleel read from the second paragraph of Manager Boehm's memorandum indicating that: "Upon learning that President Quinlan informed me that he was considering the cancellation of the meeting. After a couple of phone conversations on this matter and discussing how a special meeting has been initiated in the past, President Quinlan did let him know that he was not canceling the special meeting." Manager Boehm indicated that this was a correct quote at that particular date. Trustee Zannis questioned Manager Boehm that a couple of months ago they had long conversations about how to call meetings because there had been a special meeting called and there was a question on who had called the special meeting. She indicated that they had talked about whether or not a policy should be put in place, how to do it, was it necessary to call, write, telephone and logistically how it would be done. Subsequent to that, there have been several requests for special meetings and on several occasions there was a question whether or not Trustee Zannis concurred. She indicated once she was e- mailed and once she was telephoned and Manager Boehm asked if she concurred to the special meeting. She stated that yes she did. She indicated here is a particular case where precedent had been set, levels of expectation between she and Manager Boehm had been created and on the day before the cancellation she and Manager Boehm had a half hour telephone conversation. She suggested that Manager Boehm did not indicate to her that he needed clarification and did she concur. Now it is the eleventh hour and she suggested VILLAGE OF OAK BROOK Minutes Page 4 of 8 March 852005 3. that there was no reason for Manager Boehm to question her concurrence and all of a sudden the meeting is canceled. She asked Manager Boehm why he did not call her on this issue. Village Manager Boehm explained in the past he has called her as Trustee Aktipis has been one of the main Trustees that have called for special meetings. In the past he has either asked him for the names and or has asked that the Trustees telephone him which has happened in the past and staff has waited upwards until a few minutes before 5:00 p.m. to hear from the third Trustee. He has not made it a practice of himself to initiate a telephone call to find out who are the three Trustees. Trustee Zannis indicated that on two occasions she was e- mailed and telephoned. Manager Boehm explained that may have occurred in the past as he could not recall how many special meetings have occurred since July, as he was not available. He indicated that he did not speak with Trustee Aktipis in the beginning and he did make the assumption that there were names provided prior to his getting involved. Trustee Zannis stated that at 3:00 p.m. when President Quinlan is giving Manager Boehm a memo to hold a cancellation notice to 4:00 p.m. She questioned Manager Boehm if he said "wait, I am sure Zannis wants this meeting." Manager Boehm indicated when asked the specific question did he hear from three Trustees, he had to answer no. Trustee Zannis asked Manager Boehm if he had an obligation to work for the Board of Trustees as well. He indicated that he does work for the Board of Trustees. Trustee Zannis stated that Manager Boehm did not represent her or her desire to have the meeting nor did he take a proactive step to confirm whether or not he was correct or his Assistant Village Manager. She commented that she believed that Manager Boehm put the Board in a compromised position and that President Quinlan put him in a compromised position. She recommended that the Board should have for every Trustee candidate in the audience, a policy from this day forward indicating how the Manager will accept a called meeting because at the eleventh hour there was a manipulation. President Quinlan asked Trustee Zannis if she called in on any time on Monday or writes in before 5:00 p.m. to call that meeting. Trustee Zannis stated she sent her message with Trustee Aktipis and he delivered that and he informed her that he delivered it. When there was a question the day before that she had spoken with Manager Boehm for a half hour, she stated that the Manager never once said did you send Trustee Aktipis with a message from her, does she concur, does she know the validity of the called meeting is being in question. She stated she has never been told how to request a meeting or that it had to be in writing and never told she had to telephone her request in. She felt her obligation was covered and she communicated it. Trustee Aktipis stated that this has been the practice, and the Village Manager can testify to it, that one Trustee would call on behalf of two Trustees or one Trustee would ask for a special meeting. He suggested that the rules are not to be changed in the middle of the VILLAGE OF OAK BROOK Minutes Page 5 of 8 March 85 2005 3. game because it fits President Quinlan. Trustee Zannis stated that additionally she has called Manager Boehm and indicated that Trustee Korin and sometimes Trustee Yusuf have made a request on their behalf to call a meeting. She asked if he wanted them to call him and she indicated that Manager Boehm stated it was not necessary. Manager Boehm interjected that there has been times when he has requested that a request for a special meeting be telephoned to him. Trustee Zannis indicated that Manager Boehm has an obligation to her, the Board and future Boards to represent them. Manager Boehm stated that the way to call a meeting is clearly outlined in the Village Code. Trustee Aktipis voiced a serious concern that Manager Boehm rescheduled the meeting without notifying them that if the meeting was rescheduled, that it would become a special meeting rather than a regular meeting thereby giving the Village President the ability to not exercise a timely veto. He suggested President Quinlan is trying to attempt to delay this so that the investigation of Attorney Kubiesa is manipulated by delay. Manager Boehm responded that if the Board thinks that was his intent in following the Trustees desire to reschedule, that they are mistaken. Trustee Zannis indicated that the published notice of the meeting states it is a regular meeting as it is not noticed as a special meeting. Trustee Korin asked what the Village Code states in terms of how special meetings are to be called. Trustee Zannis stated that this could be a violation of the Open Meetings Act and maybe the meeting should be canceled. Trustee Korin formally requested that the Village Attorney send, in writing, within the next twenty -four hours the Village Code requirements of how a special meeting is to be called or any meeting is to be called. She asked for clarification immediately whether this is a special meeting and if so, she asked in writing in the Village Code or State Statute what this is based upon. President Quinlan stated the first one was given in a cancellation notice. Trustee Korin stated that the cancellation notice did not indicate how the delivery was suppose to take place that each Trustee had to call individually for a meeting. Trustee Aktipis again reiterated that the Board is presented with a meeting that is characterized as a regular meeting of the Board of Trustees on the announcement of the meeting and when the Board arrives at the meeting they are informed that it is a special meeting because it fits President Quinlan's goal. President Quinlan responded that his intention was to make sure that he was acting in a legal matter and if this is a special meeting because of the time change, he wanted to ensure that he is meeting the requirements of the law. Trustee Aktipis asked why the meeting announcement didn't indicate this. Change. Village Attorney Kubiesa indicated that it is not a matter of this Board of overriding this; it is a matter of what the law states about this meeting. The law states that this is a special VILLAGE OF OAK BROOK Minutes Page 6 of 8 March 85 2005 3. meeting because it did not start at 7:30 p.m. He explained a the beginning of the year, regular meetings were scheduled at 7:30 p.m. on the second and fourth Tuesday. If this is changed, it is a special meeting. Trustee Aktipis asked if any Trustee canceled the regular meeting of the Board. Village Clerk Gonnella interjected that the Village Clerk's office produces the agenda and that the annual meeting notice requirement states clearly that the Village Board meetings are held at 7:30 p.m. on the second and fourth Tuesday of the month. She indicated that she and her Deputy produced this agenda with the time change of 4:30 p.m. Trustee Zannis asked if a special meeting requires a 48 notice. Clerk Gonnella stated that it does require a 48 hour notice of the meeting. Trustee Zannis stated that it is a special meeting and it wasn't posted as such. Clerk Gonnella reiterated that she will take the responsibility of the error that it should have been posted as a special meeting and not a regular meeting notice. Attorney Kubiesa explained that it is not defined in the Village Code but it is defined in the Open Meetings Act and State Statute. Clerk Gonnella commented that the Open Meetings Act requires that the Clerk produce the annual meeting notice of all Boards, Commissions and Committees and their meeting times so the meeting is not considered a regular meeting as it did not commence at 7:30 p.m. on the second Tuesday of month. Trustee Caleel stated that the Board of Trustees was not notified of this. Trustee Korin suggested that now this is a violation of the Open Meetings Act. She stated that a couple of months ago their regularly scheduled meeting was postponed to 8:00 p.m. to accommodate the timing of one of the Trustees and it was never scheduled as a special meeting. If President Quinlan had any question or Attorney Kubiesa had any question as to who called the meeting of March 2, 2005, then the three Trustees should have been called for confirmation of that meeting and indeed they would have confirmed that meeting and there would have been no reason to go through all the theatrics of canceling " the meeting, calling people to come to the meeting and then not letting half of the people know that it was canceled and then the meeting was held. President Quinlan stated if they had confirmed by telephone, they would have found that only two Trustees had telephoned for the meeting. Trustee Korin indicated that three Trustees responded, two responded through Trustee Aktipis' telephoning and she sent an e -mail. President Quinlan stated it was not acceptable. Trustee Korin responded that it may not be acceptable by President Quinlan's standards but by the standards that this Village has operated under certainly since he became President and prior to that it was acceptable. She asked to see it in writing where it states that two Trustees cannot telephone in their request for a meeting but that each individual Trustee has to respond or in writing. President Quinlan asked if the Board of Trustees wished to continue the meeting, VILLAGE OF OAK BROOK Minutes Page 7 of 8 March 8, 2005 3. reschedule the meeting or call a special meeting. The question in front of the Board is legally can the Village President return his vetoes at this meeting and the answer is no, if it is not a regularly scheduled Board meeting per State Statute. Vetoes can only be returned at a regularly scheduled meeting of the Board. President Quinlan asked the Board if they wished to continue the meeting. Trustee Zannis stated that she is not sure that she has the right to a second legal opinion so she has to go with the Attorney's only opinion despite the fact that it hasn't been noticed as a special meeting twenty -four hours ahead of time, as she appears to be in violation of the Open Meetings Act. Trustee Caleel asked if this is a legal special meeting not noticed on the agenda, then it has not been properly noticed. Attorney Kubiesa stated that the meeting is a properly noticed special meeting. Trustee Zannis requested that ordinances be created for all of these items in an effort to protect future Boards and she will bring that up under new business as she will continue with the meeting. Trustee Yusuf agreed to continue with the meeting. Trustee Caleel stated that he did not wish to continue with the meeting nor did Trustee Korin. 4. ADJOURNMENT Motion by Trustee Zannis, seconded by Trustee Caleel, to adjourn the rescheduled Regular Meeting of the Board of Trustees at 5:02 p.m. VOICE VOTE: Motion carried. ATTEST: s /Linda K. Gonnella Linda K. Gonnella, CMC Village Clerk VILLAGE OF OAK BROOK Minutes Page 8 of 8 March 8, 2005