'Handover' Meeting Of Lame Duck Evanston City Council Questioned

EVANSTON, IL — A third meeting of the lame duck Evanston City Council is set to push through a crowded agenda Monday night, despite concerns the meeting may be in violation of state law and the outgoing mayor's claim that the meeting would be a "handover" to the new Council.

Since voters selected new aldermen on April 6, the City Council met on April 12 and April 26. On April 27, the Cook County Clerk's Office certified the results of the election. In addition to a new mayor and city clerk, four new council members were elected.

According to state law, the terms of the new mayor, clerk and councilmembers "shall commence at the first regular or special meeting of the corporate authorities after receipt of the official election results."

But that's not how outgoing Evanston Mayor Steve Hagerty has arranged the agendas for Monday's City Council meetings. The lame duck City Council is due to hold a Planning and Development Committee meeting at 3:30 p.m. before a busy City Council agenda.

Some of the agenda items will finalize matters the lame duck City Council gave preliminary approval to last month, while others — like a zoning amendment allowing Northwestern University to conduct for-profit events and professional sporting events — are on the agenda for introduction.

The dual agendas appear to contradict Hagerty's public statements from the April 27 meeting, which he described at the time as the final meeting of the 80th Evanston City Council.

"We have a meeting [May 10], but [May 10] is sort of a handover to the 81st Evanston City Council," Hagerty said. "So this evening's the last meeting."

There are more than two dozen items on the agenda for the final meeting of the lame duck council's agenda, which is due to begin at 4:30 p.m. and adjourn before the inaugural meeting of the incoming City Council at 7:30 p.m.

Patch has asked Hagerty for more details about the apparent contradictions between his remarks and actions and will update this story with any additional information received.

On Friday, City Attorney Nick Cummings wrote to the incoming and outgoing City Council members. He said the outgoing aldermen's terms do not expire until their replacements are sworn in, and the new aldermen cannot be sworn in until city officials deem them qualified.

"The 81st City Council does not commence until all members are both elected and qualified (there may be outstanding questions regarding whether any member is indebted to the City or if there are any prior convictions for certain crimes and no oath has been given,)" Cummings said.

Election attorney Ed Mullen disagreed. In a letter expressing his legal opinion that state law requires the new City Council to be sworn in at the 4:30 p.m. meeting, he questioned Cummings' argument.

"Evanston's Corporation Counsel suggests that the outgoing Evanston City Council may meet and conduct business because the newly elected Officers and City Council members may not be 'qualified' at the first meeting at 4:30pm (though they will be by the time of the second meeting at 7:30pm)," Mullen said.

"[Cummings] appears to be advocating that the City of Evanston evade the plain language of Section 5/3.1-10-15 of the Illinois Municipal Code by making a conscious choice not to qualify new City Council members by swearing them in at the first regular meeting," Mullen said.

(Cummings later told Patch that explaining the position requires context, which attorney-client privilege prevented him from providing.)

Ald. Cicely Fleming, 9th Ward, said she had concerns about the amount of business the lame duck council was conducting. She has asked the Rules Committee to draw up an ordinance establishing a firm date for the swearing in of a new council.

"I think that we should ideally move the date up or practice a lame duck session, only voting on the bills and payroll," Fleming said. "Anything else feeds the perception that we are cramming stuff in order to negate voter choice of representation."

State law permits cities to set their own inauguration dates as long as they are prior to June. Because Evanston has not done so, it is bound by the state law calling for new members to be sworn in at the first meeting after election certification.

Incoming 1st Ward Ald. Clare Kelly, who defeated three-term Ald. Judy Fiske by 26 votes last month, said there was a good reason for the state law, and she believed it was wrong for outgoing council members to approve a series of measures on their way out the door.

"Even the meeting on the 26th was, to me, unethical, but it was legal," Kelly said. "It was right before the 27th, which was the date of the proclamation. And it looked bad, and it was bad, but there was nothing we could do about it. Now? Come on. Now, the night that we're going to be sworn in … it's a jam-packed agenda."

Items on the agenda include negotiating the sale of the city-owned former North Branch Library site, replacing the Ethics Board with a special counsel process, moving forward with a new TIF district, a revamp of the special use permit process and final approval of a 40-year lease of the Harley Clarke Mansion and Coach House.

RELATED: 'Aldermen' No More, Outgoing City Council Approves Packed Agenda

As it stands, the 4:30 p.m. meeting is scheduled to include an executive session as its final item. The agenda does not specify what exemption to the Open Meetings Act will be cited to enter into the closed-door discussions.

Instead of swearing in the new council members as one of the last actions of the meeting, the agenda calls for adjournment. A separate agenda for the 7:30 p.m. meeting is scheduled to be called to order by Hagerty again.

The only items on its agenda are the administration of oaths of offices to new members, public comment, and remarks by the mayor, clerk and each council member.

A review of past meeting materials indicated Evanston did swear in its new City Council as its first action at its first post-election meeting in 2013 — but not in 2017, when the lame duck City Council held a regular meeting with a full agenda before adjourning and later convening a second meeting to swear in the new members.

In one of his first acts as mayor, Mayor Steve Hagerty was found to have violated the Open Meetings Act when he convened a June 2017 emergency meeting to consider an ordinance to block a minimum wage increase. It remains to be seen if one of his last acts as mayor will also be determined to have violated state law.

UPDATE: At the start of the 4:30 p.m. meeting, Hagerty announced that he would not adjourn the first meeting as his agendas described.

"This year it has come to my attention that the procedure of commencing and adjourning two separate meetings has been questioned," Hagerty said. "Tonight, we plan to recess instead of adjourn at the conclusion of our items of consideration."