Sandwich City Council to consider ordinance that would crackdown on officials who breach executive session confidentiality

The Sandwich City Council is set to adopt an ordinance that would give the council clearer grounds for reprimanding city elected officials, officers, and employees who would break executive session confidentiality.

The ordinance reads, “A violation of this section by any member of the City Council, city officer, or city employee shall be considered a breach of the member, officer, or employee’s fiduciary duty to the city. Any individual found by the City Council to be in violation of this section may either be terminated, disciplined, censured, or reported to the DeKalb County State’s Attorney for consideration of misconduct charges under the Illinois Criminal Code or the Illinois Municipal Code.”

The ordinance is on the City Council’s agenda for adoption during a meeting set for this evening, Monday, Oct. 3 at 7 p.m. at City Hall.

City Attorney Cassandra Gottschalk drafted the ordinance at the request of Mayor Todd Latham, who presented it to the council at a Sept. 19 committee-of-the-whole meeting.

“This is something that quite a few municipalities are moving towards right now,” Gottschalk said. “Because it’s not 100% clear what the consequences are; so this is giving clear consequences.”

Under provisions of the Illinois Open Meetings Act, the City Council and other public bodies across the state are permitted to hold executive sessions to discuss a limited number of topics in private, including labor negotiations.

The City Council is considering the ordinance at the same time it is negotiating a new contract with the union representing the city’s police officers. However, Latham said the drafting of the ordinance was not prompted by one specific event.

“It’s just a reminder for everyone of our ethical obligations,” Latham said. “I think we need to be mindful and keep the confidentiality of closed session discussions.”

“In general for the council, any breach of that (executive session confidentiality) is pretty much just censure,” Gottschalk said. “But this (ordinance) gives the city a clearer way to proceed with a censure for violating this.”

However, Matt Topic, attorney and partner with Leovy & Leovy, a Chicago-based law firm specializing in FOIA and civil rights cases and founder of their Freedom of Information Act practice, said he thought the ordinance was extremely heavy handed.

“I think what this ordinance is doing is threatening the possibility of criminal prosecution if you don’t abide by it,” Topic said. “This seems like sort of an empty threat, but one that would still be scary, especially to an employee.”

Topic said he wasn’t aware of anything in the criminal code or municipal code that would make disclosure of executive session information a crime.

“They can vote to censure anybody whenever they want to,” Topic said. “But they can’t remove them from office.”

The ordinance reads, “No disclosure of any discussion held or any decision made in executive session shall be made until publicized by announcement, publication, or official action by or at the direction of the City Council.”

“This City Council seems to have a fundamental misunderstanding of how the Open Meetings Act works,” Topic said.

Topic said the statute expressly states that no final action can be taken in closed session.

“To threaten criminalizing public disclosure of a closed session seems extremely heavy handed to me,” Topic said. “I would be surprised if there is any law that would make that a crime.”