IN THE CIRCUIT COURT FOR THE EIGHTEENTH JUDICIAL CIRCUIT COUNTY OF DUPAGE, ILLINOIS FOR THE GOOD OF ILLINOIS, INC. EDGAR COUNTY WATCHDOGS, INC. ADAM ANDRZEJEWSKI, KIRK ALLEN, JOHN KRAFT, Plaintiffs, Case No. 15 CH 154 Hon. Bonnie M. Wheaton THE BOARD OF TRUSTEES OF COMMUNITY COLLEGE DISTRICT NO. 502, COLLEGE OF DUPAGE, V. Defendant. EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION Plaintiffs respectfully move this Court for the entry of a temporary restraining order and preliminary injunctive relief requiring Defendant to comply with section 2.01 of the Open Meetings Act, 5 ILCS 120/201 and hold the location of the Board of Trustees meeting on Wednesday, January 28, 2015 in a room ?convenient and open to the public? as required by the Act. In support of their motion, Plaintiffs state as follows: FACTUAL BACKGROUND 1. On January 22, 2015, the College of DuPage, acting through its Board of Trustees, approved a controversial (and lucrative) severance package for the College?s current president, Dr. Robert Breuder (Item on the Board agenda). The Board took that action without providing the required notice to the public, and without any meaningful opportunity for the public to participate in the meeting. 2. Despite requests from the public that the meetings be held in a larger room to accommodate the crowd that attend regular board meetings (and is usually forced to watch the meeting in a remote room via live broadcast), the January 22 meeting was held in a small board room with the limited capacity of 30 people, as it has been for other regularly scheduled meetings. 3. At the January 22, 2015 meeting, one of the Trustees, Kathy Hamilton, as well as various members of the public voiced their concerns regarding the procedure the College of DuPage employed in approving Dr. Breuder?s contract addendum, including the College?s lack of notice to the public regarding the content of the addendum. 4. On January 26, 2015, the College announced that it would hold a special Board meeting to re-vote on the addendum. The Special meeting is to be held on January 28, 2015 at 7:00 pm. in the regular board room. ARGUMENT I. Legal Standards For Temporary Restraining Order And Preliminary Injunction. 5. A citizen seeking a temporary restraining order or preliminary injunctive to restrain public of?cials from violating the open meetings act need only show: (1) the defendant has violated the statute; and (2) the plaintiff has standing. Roxana Community Unit School District, 2012 IL App (4th) 120331, 1124, 973 at 1080. 6. In this case, Defendant conducted the January 22, 2015 meeting in violation of 5 ILCS 120/2.01, by not providing a room that is ?convenient and open to the public.? Defendants now plan to once again violate 120/2.01 by conducting the January 28, 2015 meeting in the same location. This is not the ?rst time this has happened. 7. Plaintiff Kirk Allen has previously requested that the College hold their Board of Trustee meetings in a larger facility and that the College?s ongoing refusal to do so constituted a violation of the Act. (Allen Af?davit 1 and 2) The Attorney General was asked to review complaints about the adequacy of the meeting space and the College of DuPage submitted its position to the attorney general in a letter dated October 29, 2014. Therein, the college acknowledged: Certainly, if the College has adequate advance notice that a large crowd greatly overwhelming the boardroom was planning to attend a meeting, and that the planned attendees preferred to see the meeting live instead of by broadcast, the College would make appropriate arrangements to move to a larger space. This is What is required by the Gerwz?n decision and the college takes no issue with this requirement. (Allen Af?davit 1i 3 and Exhibit A) II. Plaintiffs Are Likely To Prevail On The Merits Of Their Claims. 8. Count I alleges violations of the Open Meetings Act for the Board?s failure to post an adequate agenda that suf?ciently identi?ed the subject matter of by preventing the public from their right to meaningful participation in the meeting by failing to advise them what was up for discussion and holding the board meeting in an inconvenient location. 9. Because the Board has called a special meeting to essentially ?redo? the January 22, 2015 meeting, as it pertains to Dr. Breuder?s contract addendum, Plaintiffs are Seeking a temporary restraining order against the Board to prevent them from future violations of the Open Meetings Act by scheduling the January 28, 2015 meeting in the same inconvenient location as it did on January 22, 2015. A. The Board Meeting Location For the January 28, 2015 Meeting Is Not ?Convenient And Open? 10. Section 120/2.0l of the Open Meetings Act requires that ?[a]ll meetings required by the Act to be public shall be held at speci?ed times and places which are convenient and open to the public.? Although the Illinois courts have not speci?cally de?ned what it means to be ?convenient and open,? the case of Gerwin v. Livingstone County Board, 345 Ill. App. 3d 352 (4th Dist. 2003), is instructive. 11. In that case, the county chairman was informed at least a week in advance that a large number of people would be attending a scheduled meeting. However, the chairman failed to move the meeting to a larger venue, even though one was available. The Gerwin court held that ?a meeting can be open in the sense that no one is prohibited from attending it, but it can be held in such an ill-suited, unaccommodating, unadvantageous place that members of the public, as a practical matter, would be deterred from attending it.? Id. at 361. It concluded that the Act required ?reasonable accessibility? to the meeting. Id. at 362. 12. Just as in Gerwin, the College had notice that the January 22, 2015 meeting (and in fact, most other meetings) would draw a crowd too large for the general board meeting room. (Allen Af?davit 1 and 5) Plaintiff Kirk Allen informed the Board that the general board room has not been large enough to accommodate citizens for the meetings over the past ?ve months. Further, Allen noti?ed the Board that a large crowd would be in attendance and requested that the meeting be moved to a larger room to accommodate the planned attendees. (Allen Af?davit ?Il 5) 13. In response, the Board attorney, Kenneth Florey, denied Kraft?s request, stating that the board room was suf?cient, even though its seating capacity is 30, many of which are reserved by the College for College employees. (Allen Af?davit 1} 6 and Exhibit B) Moreover, the College has other larger, available venues for the meeting to be held. For example, the McAninch Arts Center (MAC) at the College is a large auditorium, which seats up to 800 individuals. (Allen Af?davit 1i 7) 14. The Board has been given adequate advanced notice as to the anticipation of a large crowd at the January 22, 2015 meeting (as well as the inadequate size of the board room in general). Their failure, and ?at-out denial, to move the location of the meeting is a direct violation of the Open Meetings Act. Because the special meeting is discussing the same action that Kraft noti?ed the Board was likely to draw a large crowd, holding the January 28, 2015 meeting in the same location would also be a violation of the Act. Thus, Plaintiffs are likely to succeed on this claim. Plaintiffs Have Standing. 15. Plaintiffs in this case are seeking both declaratory relief as well as injunctive relief. In their claim for injunctive relief, Plaintiffs must establish that they have standing. Plaintiffs can easily satisfy that requirement. 16. The plaintiffs are persons. 17. Under the Open Meetings Act ?any person, including the State's Attorney of the county in which such noncompliance may occur, may bring a civil action in the circuit court for the judicial circuit in which the alleged noncompliance has occurred or is about to 5 ILCS 120/3(a) (emphasis added). WHEREFORE, for the reasons set forth herein, Plaintiffs For the Good of Illinois, Edgar County Watchdogs, Adam Andrezejewski, Kirk Allen and John Kraft respectfully move this Court for the entry of a temporary restraining order and preliminary injunctive relief requiring Defendant to conduct their January 28, 2015 Board meeting in a location large enough to reasonably accommodate the anticipated public attendants. Dated: January 27, 2014 Respectfully submitted, Timothy D. Elliott Charlie L. Philbrick Jordan R. Franklin RATHJE WOODWARD, LLC 300 E. Roosevelt Rd., Suite 300 Wheaton, IL 60187 630-668-8500 Attorneys for Plaintiffs IN THE CIRCUIT COURT FOR THE EIGHTEENTH JUDICIAL CIRCUIT COUNTY OF DUPAGE, ILLINOIS FOR THE GOOD OF ILLINOIS, INC. EDGAR COUNTY WATCHDOGS, INC., ADAM ANDRZEJEWSKI, KIRK ALLEN, and JOHN KRAFT, Plaintiffs, Case No. 2015 CH 154 v. Hon. Bonnie Wheaton THE BOARD OF TRUSTEES OF COMMUNITY COLLEGE DISTRICT NO. 502, COLLEGE OF DUPAGE, Defendant. AFFIDAVIT OF TIMOTHY D. ELLIOTT STATE OF ILLINOIS COUNTY OF DUPAGE i I, TIMOTHY D. ELLIOTT, state under oath and penalty of perjury that I am of sound mind and capable of making this Af?davit, and that if called to testify, I could competently testify to the following facts: 1. I am over 18 years of age and an attorney with the law ?rm of Rathje Woodward, LLC located at 300 E. Roosevelt Rd, Ste. 300 in Wheaton, Illinois. 2. I represent the Plaintiffs in this matter. 3. Pursuant to Local Rule 6.08, the requested relief in the attendant motion by Plaintiffs is necessary as Plaintiffs are seeking to enjoin an event to occur at a meeting Scheduled to take place the evening of January 28, 2015 and needs such motion to be heard by the appropriate court before that meeting. TIMOTHY D. ELLIOTT EXHIBIT A IN THE CIRCUIT COURT FOR THE EIGHTEENTH JUDICIAL CIRCUIT COUNTY OF DUPAGE, ILLINOIS FOR THE GOOD OF ILLINOIS, EDGAR COUNTY WATCHDOGS, ADAM ANDRZEJEWSKI, KIRK ALLEN, JOHN KRAFT Plaintiffs, Case No. 2015 CH 000154 THE BOARD OF TRUSTEES OF COMMUNITY COLLEGE DISTRICT NO. 502, COLLEGE OF DUPAGE, v. Defendant. AFFIDAVIT OF KIRK ALLEN 1, Kirk Allen, make this af?davit based on my personal knowledge and if called as a witness in the matter would testify under oath as follows: 1. I previously and repeatedly requested that the College Of DuPage hold their Board of Trustee meetings in a larger facility because the usual public attendance at the Board meetings exceeded the capacity of the general board room where the meetings were held. 2. It was my belief that the College?s ongoing refusal to hold their meetings in a room with adequate seating capacity constituted a Violation of the Open Meetings Act. 3. The Attorney General was asked to review complaints and the College of DuPage submitted its position to the Attorney General in a letter dated October 29, 2014. Therein, the College acknowledged: Certainly, if the College has adequate advance notice that a large crowd greatly overwhelming the boardroom was planning to attend a meeting, and that the planned attendees preferred to see the meeting live instead of by broadcast, the College would make appropriate arrangements to move to a larger space. This is what is required by the Gerwm decision and the college takes no issue with this requirement. 3. A copy of the College?s October 29, 2015 letter to the Attorney General is attached hereto as Exhibit A. 5. I noti?ed the Board of Trustees that a large crowd would be in attendance for the January 22, 2015 meeting and requested that the meeting be moved to a larger room to accommodate the planned attendees. 6. In response, the Board attorney, Kenneth Florey, denied my request, stating that the board room. was suf?cient, even though its seating capacity is 30, many of which are reserved by the College for College employees. A true and accurate copy of that email exchange is attached hereto as Exhibit B. 7. It is my understanding that the College has other larger, available venues for the meeting to be held, including the McAninch Arts Center (MAC), which is a large auditorium with. capacity for up to 800 individuals. 8. I have made a request to the Board of Trustees to move the newly scheduled January 28, 2015 special meeting to a larger facility. I have not been given a response. 9. I expect the public attendance of the newly scheduled January 28, 2015 special Board meeting to far exceed the capacity of the general board room. FURTHER AFFIANT SAYTH NOT. Dated: January 27, 2014 Respectfully submitted, Kirk Allen Su cribed and sworn before me this mail ay of January 2015. Notary Public 6 ?an? ELLENGTON Nomi} Main .4: .?muh 1 My Exp. 33-07715 DJ 'Robbins Schwartz I 55 West Monroe, Suite 800 I Chicago. IL 60603-5144 '3 I I .I - KENNETH M. FLOREY October 29. 2014 Benjamin Reed VIA UPS OVERNIGHT DELIVERY Assistant Attorney General Of?ce of the Attorney General Public Access Bureau may GENERAL 500 South Second Street Re: OMA Request for Review - 2014 PAC 31511 - 6?0 - ?t Dear Mr. Reed: MW I. MA This law firm represents the College of DuPage (?College?) in the above referenced Request for Review. The Request for Review pursuant to the Open Meetings Act was received by the College on October 20, 2014, and we provide this response for your review pursuant to Section 3.5(c) of the Act. 5 Additionally, the following documents are enclosed herein: - Agenda for the College?s Regular Bord Meeting of September 25. 2014; 0 Draft of the minutes, which are awaiting approval. of the College's Regular Board Meeting of September 25. 2014; Video of the College's Regular Board Meeting of September 25. 2014; Notice of the Board of Trustees Meeting of September 25. 2014: College Board of Trustee Policy No. 5-145; College Board of Trustee Policy No. 5-150: Public comment rules and procedures adopted September 25. 2014 (?rules' or "rules for public comment"). At the outset it must be noted that nowhere is John Kraft (?Requester') claiming that he was denied the right to address the College's Board of Trustees. It is undisputed that Requester and all other members of the public were given an opportunity to address the College's Board of Trustees at two different times during the meeting of September 25. 2014. What Requester actually wants is the right to broadly dictate when the public comment portion of College Board meetings will take place and the terms upon which Requester gets to participate in the meeting so that he can advance his own personal views in the way he views most effective. Below we address the ten allegations of the Requester in turn. Allegation No. 1 Requester ?rst claims that the College cannot enforce the roles for public comment at the same meeting where those rules were adopted. This claim by Requester that the Act contains a waiting period that must run its course before the College can enforce its rules is. of Attorneys atLaw ph: 312.332.7760 fax: 312.332.7768 Exhibit A Robbins Schwartz - October 2% 2013 age course. not supported by the Act or any other law or regulation. If the legislature had intended for there to be a waiting period it would have specifically stated as much in the Act. Instead. the Act provides that the rules. must be "established and recorded.? The term "establish" means ?to bring about or into existence" and "to settle. make or ?x firmly." See ?Establish.? Black?s Law Dictionary. Sixth Ed. The term 'record' when used as a verb means 'to commit to writing. to printing. to inscription or the like." See "Record." Black's Law Dictionary Sixth Ed. There is no dispute that the College's rules for participation and public comment were in existence. available to the public with the agenda and Board Meeting packet prior to the meeting. approved by the College's Board of Trustees. and in writing betcre they were enforced. Just because the Requester claims the Act has a waiting period does not make it so. The Requester also alleges that rules for public comment must be reasonable and also must "enhance (not further restrict) the public?s ability to address their public of?cials during meetings." This allegation is made without further elaboration about what is supposedly unreasonable about the College's rules and there is no citation to any authority to support the claim that the College can only implement rules that enhance the public's ability to address public of?cials during meetings or that the College's rules do not have that effect. Allegation number 1. therefore. should be denied i Allegation No. 2 For this allegation. the Requester lists live reasons why Requester believes the College's rules for public comment violate the Act. First. the College notes impenent legal principles with respect to public comment at governmental meetings open to the public. Section 206(9) of the Act became effective January 1, 2011 and provides that "any person shall be permitted an opportunity to address public of?cials under the rules established and recorded by the public body.? 5 Prior to January 1. 2011 the Act did not guarantee members of the public the right to address public bodies. Clearly. even now the right to address a public body is not without limits. The First Amendment to the United States Constitution provides freedom of speech rights. but 'the First Amendment does not guarantee persons the right to communicate their views at all times or in any manner that may be desired." Heffron v. intemationai Society for Krishna Consciousness, 452 us. 640. 647 (1981). It also does not ?guarantee access to property simply because it is owned or controlled by the government.? Perry Education Association v. Perry Local Educators' Association. 460 U.S.37. 46 (1983). The public comment portion of a meeting of a public body is a ?timed designated public forum." Thornton v. City of Kirkwood. slip opinion at 4. 2008 WL 239575 (ED. Mo. 2008) (emphasis citing Eichenlaub v. Township of Indiana. 385 F.3d 274 Cir. 2004) (citizen's forum portion of township's board of supervisors meeting is a limited designated public forum): White v. City or Narwelk. 900 F.2d 1421, 1425 Cir. 1990) (city council meeting where citizens may address council regarded as limited public forum); Jones v. Heyman. 888 F.2d 1328. 1332 (11th Cir. 1989) (city commission meeting is forum where speech may be restricted to specified subject matter). There is a signi?cant goVernmental interest in conducting orderly. ef?cient meetings of public bodies. Rowe v. City of Cocoa. Florida. 358 F.3d 800. 803 Attorneys at Law Exhibit A R0 . Assistant $333333: I . October 2% 2013 age (11 Cir. 2004). Governmental bodies have legitimate reasons for having rules to maintain decorum at public meetings and to assure that meetings are efficiently conducted. Timmon v. Wood. 633 F. Supp. 2d 453. 465 Mm. Mich. 2008). There is no question that Requester has a right to address the College's Board of Trustees under the Act. 5 There is also no question that Requester and every member of the public was afforded and took advantage of that opportunity on September 25. 2014. Nevertheless. Requester lists ?ve reasons why he believes the College's public comment rules violate the Act. Requester is wrong on each point. as explained In the subsequent paragraphs below. ?Requester complains that the Collee's rules do not de?ne the term ?relevant subject matter? and that the Board Chair therefore has the authority to determine what the term means. His position leads him to read too'much' into this term by taking it out of context. Speci?cally. the rules state in pertinent part ?[tJhe initial Public Comment segment shall be limited to items speci?cally on the agenda. The Public Comment segment at the end of the meeting shall be open to any relevant subject matters.? Thus. there are two public comment portions of a College Board of Trustees meeting. the initial portion where persons can talk about items specifically on the agenda and the public comment portion at the end of thelmeeting. where speakers can talk about any other topic. This is a perfectly reasonable approach. Allegation number therefore. should be denied. Requester next complains that the requirement in the rules that ?all speakers must address their comments to the Chair" somehow limits his opportunity to address public of?cials other than the Chair. The Requester's concern is a result of his erroneous assumption that the rules prohibit the Requester from addressing other public officials or that only the Chair may be addressed. The requirement that speakers address comments to the Chair is simply a formal acknowledgment that the Chair presides over Board of Trustee meetings at the College and in such role must be in a position to start and stop public speaker segments and hear and observe public comments in order to ensure decorum prevails and that the rules on public comment are followed. The requirement that speakers address comments to the Chair is not a prohibition on speakers also addressing other Board members. Nowhere do the rules state that other Board members may not be addressed. Allegation number therefore. should be denied. ,The College's rules provide that ?[slpeakers shall be courteous and should not make statements that are personally disrespectful to members of_ the Board or other individuals. Foul. abusive. or inappropriate ianguage. displays. actions or materials are prohibited." The Requester. Objects to this language because there is no de?nition for the several words used. it would. of course. be impossible to state every single action that could be discourieous and list over single usage of language. every single display. every single action and all possible materials that nearly all people commonly know to be foul. abusive er inappropriate. But this is not required. Speakers at public meetings are subject to restriction when their speech "disrupts. disturbs or otherwise impedes the orderly conduct? of a meeting of a public body. and can be regulated when it is such. White v. city of Norwalk. 900 F.2d 1421. 1426 (9th Cir. 1-990). Furthermore. the College. like other institutions in Illinois and in the United States must rely on the common sense and common decency of people. Generalized language in rules and laws Aftonteysatlaw Exhibit A Robbins. Schwartz . October 2% 201: age requiring courteous behavior is common. For example. criminal contempt. punishable in Illinois by ?nes and prison. is part of the common law and. described with no more speci?city than ?verbal or nonverbal conduct calculated to embarrass. hinder. or obstruct a court in its administration of justice or to derogate from its authority or dignity. or bring the administration of justice into disrepute." In re Marriage of Belts, 200 Ill. App. 3d 26. 558 404 (4th Dist. 1990). This is similar to the reasonabie rules the College has adopted. Allegatio'n number therefore. should be'denied. The Requester next claims that the right to address public of?cials at public meetings in Section 2.06(g) of the Act also means the right to have any and all media displays. The Act. of course, says nothing of the sort. Unsurprisingly. the Requester does not specify any other law or regulation that gives him the right to utilize the College's projector equipment for his own use during public comment. Nor does the Requester claim that there was a College policy permitting the public to use media equipment during public comment. And. in fact. no such policy exists. Again. section 206(9) of the Act. provides that ?any person shall be permitted an opportunity to public Officials under the rules established and recorded by the public body.? 5 120I2.06(g) (emphasis added). The right to "address" public of?cials means that a person has the right to speak to the public officials. See ?address' Merriam-Webster Oniine Dictionary. The right to address does not mean that the Requester has the right to use the media equipment of a public body or othenivise demand that the College make equipment available to Requester so that he can enhance his presentation during public comments. Allegation number Zidj. therefore. should be denied. - The last reason given by the Requester for the rules violating the Act is that the College used the word "should" instead of ?shell? in stating in the rules that ?[ajny individuals using cameras or other video equipment should stand or sit in the College designated area.? There is no real issue to be addressed here. The Requester does not claim that the use of the word ?should? instead of "shall' had the effect of prohibiting him from addressing public officials. Allegation number therefore. should be denied. Allegation No. 3 (erroneously labeled as Allagation No. 2) For this allegation. the Requester claims that a person he knows only as 'Laura? was denied the opportunity to speak at the initial public comment section and had to wait to the second public comment portion of the? meeting to continue her comments. First. the Requester lacks standing to assert any claims that 'Laura' may have. Nevertheless, Requester does not even describe a violation of the Act. since Requester acknowledges that ?Laura? had the opportunity to and did address the College's Board of Trustees at the September 25. 2014 meeting during the second public comment period. Thus. no violation of the Act is described .and this allegation should be denied. Allegation No. 4 (erroneousiy labeled as Alleation No. 3) Similar to the preceding allegation. this allegation does not describe a violation of the Act. since all speakers at the September 25. 201_4_meeting were given a chance to make public Attorneys at Law Exhibit A Robbins Assistant 232:1 October $329331; comments. Pursuant to the College's rules, public comment on agenda related tepics takes place at the initial public comment portion of the meeting and at the second public comment portion of the meeting public comment is allowed on any other topic. As the video of the September 25. 2014 meeting shows. the Chair maintained meeting order and efficiency by not allowing speakers at the initial public comment section to violate the College's rules by speaking on items not related to the agenda. The efforts to maintain order were accomplished in a ?rm but civil manner. similar to the way a judge in a courtroom might require disorderly persons to become orderly. As there were no violations of the Act. this allegation must be denied. Allegations No. 5 and 6 (erroneously labeled as Allegations No. 4 and 5} For these allegations, the Requester claims that the public comment portion of the September 25. 2014 meeting was discriminatory because citizens of District 502 were able to make public comments before citizens-at-iarge and students and faculty and because persons speaking about agenda items were able to present at the initial public comment section of the meeting and persons not speaking about anything on the agenda had to wait until the end of the meeting. According to the Requester he was ?forced to the back of the bus' (even though he was the fourth person to speak at the initial public comment section and therefore had to wait a mere 9 minutes). The Requester, it seems, does not like this arrangement because he is from Edgar County and wants to go ?rst. The public comment framework established by the College was established because it is an ef?cient and common sense approach for conducting meetings. Deciding. as the College has done. to classify speakers by topic enhances meetings and is reasonable because it allows those speakers to go ?rst who want to talk about an item actually on the agenda. Public comment on non-agenda items is allowed at the end of the meeting so that the Board of Trustees can accomplish its work. With this arrangement. people who are present at the meeting because they are interested in a certain agenda item do not have to sit through hours of public comment on topics that have nothing to do with the agenda. The Requester labels the College's practice of grouping speakers as "discriminatory" but before making his incendiary remarks he fails to recognize or consider that every procedure for determining who goes ?rst during public comment is bound to make some people unhappy?? someone has to go ?rst. if. for example. the College had a ??rst in time ?rst in line' practice. the College would allegedly be discriminating against members of the public who couldn't arrive ?rst to the meeting. The Requester complaint that he cannot speak ?rst at every meeting does not mean that the policy is unreasonable or a violation of the Act. The College?s reasonable approach to structuring public comment is fully constitutional. The First Amendment to the United States Constitution provides freedom of speech rights. but ?the First Amendment does not guarantee persons the right to communicate their views at all times or in any manner that may be desired. He?ron v. Intemalr?onal Society for Krishna Consciousness. 452 U.S. 640. 647 (1981). Governmental bodies have legitimate reasons for having rules to maintain decorum at public meetings and to assure that meetings are ef?ciently conducted. Timmon v. Wood, 633 F. Supp. 2d 453. 465 (W.D. Mich. 2008). Attorneysatlaw Exhibit A R0 - Assistant Eggs; October 2%;921; To the extent Requester is confused about the distinction between 'District No. 502 Citizens? and 'Citizens?at-Large" this letter clari?es that the leaner means citizens living within the boundaries of Community College District "502 and I?Citizens-latterge" means everybody else. - Requester has a to address the College's Board of Trustees under the Act. 5 12012.06lg). But he does not have the right to tell the College how its agenda must be structured or the order in which the College will conduct business or hear public comment. This allegation. therefore. must be denied. ?Allegation No. 7 (erroneously labeled as Allegation No. 6} Next. Requester claims that it was a violation of the Act for the College to give the press designated seating in the Board meeting room while denying Requester the privilege of sitting in the press area. Like so many of his other violations. Requester does not actually state how the Act is violated or cite to a specific section of the Act. There is simply no section of the Act that mandates that the College-allow all people to sit in the press section of the Board meeting room. Nor does the Requester claim that the establishment of a press section denied Requester the opportunity to address the Board. Seating for the press is. of course. limited. and it is the practice of the College to provide members of the press who have historically covered the College and havenoti?ed' the College of their status pursuant to Section 2.0200) of the Act (is Daily Herald. Chicago Tribune. Chicago Sun-Times. Glen Ellyn Patch. etc.) seating at tables in the front of the Board meeting room. These media outlets send paid employeelreporters to cover College Board meetings and the reporters are typically working on a deadline for their respective publications. The College simply provides a press area to these traditional media outlets as a courtesy. but there is no requirement in the Act that the College open up the press area to all who want to sit there. This allegation. therefore. must be denied. Allegatlon No. 8 (erroneously labeled as Allegation No. 7) Requester claims that Board of Trustee meetings are not held in a large enough area. it is dif?cult to fully respond to this claim since Requester does not state or even approximate how many people were in attendance at the September 25. 2014 meeting. does not state or approximate how many of those attendees. if any. did not get a seat in the Board room or how many of the attendees notified the College in advance that they would be attending. These are important factors to consider. as Gerwin v. Livingstone County Board, 345 Ill. App. 3d 352. 802 410 (4th Dist. 2003) instructs. Section 2.01 of the ,Act requires meeting venues that are ?convenient? and "open' to the public. 5 12012.01. These terms are not de?ned by the Act but in Gerwin the Appellate Court addressed the ?convenient and open? requirement of the Act and shed much light on its meaning. The plaintiffs in Gerwin alleged that they were improperly precluded from attending a county board meetin who're a landfill expansion was being considered because the meeting room was inadequate to accommodate the large number of attendees. Gemin, 345 Ill. App. 3d at 354. The plaintiffs alleged that the county board chairman knew at least a week Attorneys at Low Exhibit A Robbins r?rz Assistant 333?; October 2%;081; ahead of time that a large number of people would be attending and that the meeting room would be inadequate but nevertheless decided not to move the meeting to a larger venue. even though one was_available. because the county. board chairman wanted to make attendance by the public inconvenient. Genvr'n. 345 Ill. App. 3d at 355. 362. The closest plaintiff was to the meeting room was 10 feet from the door and she was standing there in a packed hallway with at least 100 other people breathing air that was ?close. hot. airless and uncomfortable.? Gemin. 345 ill. App. 3d at 356. According to the plaintiff. many members of the public left. either because they could not hear or see the meeting or because conditions in the building were intolerable. Gemin, 345 ill. App. 3d at 356: The Gerwin court noted that a meeting can be ?open in the sense that no one is prohibited from attending it. but it can be held in such an ill-suited. unaccommodating, unadvantageous place that members of the public. as a practical matter. would be deterred irom attending it." Genw'n. 345 App. 3d at 361. But the Gerwin court then immediately notes that the Act does not specify how far a public agency must go in accommodating members of the public and that it would be unreasonable to suppose that the Illinois legislature intended public bodies hold their meetings at locations suf?cient to accommodate all interested members of the public such that they may see and hear all proceedings in reasonable comfort and safety. The reason. as the Gerwin court further observed. is that if enough member of the public showed up. as in a mass demonstration. the business of government would come to a standstill for lack of a venue large enough to accommodate such crowds. Gerwin. 345 Ill. App. 3d at 361-62. This would ?permit invalidation of any action by a public body by the simple method of overflowing the meeting room.? Gerwr?p. 345 Ill. App. 3d at 362. quoting Gutierrez. 96 NM. at 400. 631 P.2d at 306. ?me be safe.? the public body ?would have to hire football stadium or hold its meetings in a wide open space.? id. Thus the Gamin court concluded, the concept of public convenience implies a rule of reasonableness?not absolute accessibility to meetings but reasonable accessibility. Genvr?n, 345 Ill. App. 3d at 362. In other words. a convenient meeting place "lay somewhere between the extremes of a broom closet and football stadium.? Gerwin. 345 ill. App. 3d at 362. The College's Board of Trustees holds its meetings in a board room that is not unlike hundreds or thousands of other public body meeting rooms across the State of The Board sits at a horseshoe shaped table facing the audience. and there are 30 general public seats available. At the front of the general seating area are press tables and to the side of the room is an area for people video recording or photographing the meeting. No standing in the aisles or in the back of the room is permitted. for safety reasons. From time to time the College reserves a few seats for persons or College employees who are giving special presentations. but in almost all meetings that have ever taken place in the room there has remained numerous seats for the public; even when seats are reserved they usually open up quickly as the presenters who were occupying those?seats typically leave the meeting after conclusion of the presenter's portion of the meeting. Nevertheless. recognizing that unexpected over?ow crowds are possible. the College also uses state-of-the-art technology to broadcast the meeting in nearby over?ow rooms where ample seating (80 seats) and comfortable room conditions prevail. The College has determined that this arrangement is more accommodating than say. for instance. taking the time to move the meeting to a different building on campus' such as an auditorium or gymnasium where audience members? view of the board meeting would be inferior to the view presented'by video in the over?ow rooms. Attorneys at Law Exhibit A . I Assistant 332?; . I . . October 22:90:; The Requester complains that persons in over?ow rooms (though he does not claim that he is one of those persons) cannot observe the actions of board members when the camera is not focused on a particular board member. This concern is overblown and not a violation of the Act. When one person is talking the camera typically focuses in on that person. but when an exchange between board members occurs the camera pans out and the exchange is captured. The video enclosed herein is what was broadcast in the over?ow room on September 25. 2014 and is representative of other meeting broadcasts. The Requester?s concern is especially overblown given the holdings in Gonna?reasonable accessibility. not absolute accessibility is required. There can be no question that the College has provided reasonable accessibility. Requester?s complaint on the other hand is unreasonable. He attended the meeting. in the actiral board meeting room. and was the fourth person in line to speak during the initial public session. His grounds to complain are non-existent. Certainly. if the College had adequate advanced notice that large crowd greatly overwhelming the board room was planning to attend a meeting. and that the planned attendees preferred to see the meeting live instead of by broadcast. the College would make appropriate arrangements to move to a larger space. This is what is required by the (39an decision and the College takes no issue with this requirement. Allegation No. 9 (erroneously labeled as Allegation No. 8) Requester creates this issue with the intent of making the College appear as sinister as possible. But a_simple explanation exists for, the brief door locking episode. as Requester should and probably does know. For safety- reasons. the doors to every College building including the building where College Board. meetings are held automatically and electronically look at 11:00 pm. by computer timer. The meeting of September 25. 2014 ran late and during a closed session some people could have been brie?y locked out at 11:00 pm. because of the building's auto-lock system. in short order College police officers were available to let people back in the building. Allegatlon No. 10 (erroneously labeled as Allegation No. 9) The last allegation is that the Act was violated because Board member Kathy Hamilton was whispering to Board Chair Erin Bin. While this may have occurred. it is an uncommon practice which is discouraged by Chair Birt. Under the Act. two Board members whispering is not a violation of the Act. It seems to be the claim of Requester that .when Board member Hamilton whispers to Chair Birt. a closed meeting has occured in violation of the Act. This is wrong because a ?meeting? under the Act means a majority of a quorum held for the purpose of conduoting public business. 5 Since two members are not a majority of a quorum. their whispering cannot constitute a closed meeting in violation of the Act. The situation would be different. of course. it the allegations made were that the Board as a whole. or a majority of a quorum. conducted business. deliberated and took votes in whispers. But that is simply not the case PAC Opinion 2013 PAC 23488, (Section 2(a) of the Act was violated where the board did not publically recite item, being voted on). This allegation. therefore. must be denied. Attorneys at Law Exhibit A R0 hwa Assistant $331-$333 . October 2%a290813 conclusion Thank you. for your consideration. Should you require additional documents or infonnation or wish to oiscuss these matters further, please do not hesitate to contact me. Very truly yours. ROBBINS SCHWARTZ By: Kenneth M. _Florey Enclosures cc: Erin Birt Dr. Robert Breuder Respicio Vazquez Attorneys at Law Exhibit A From: Kirk Allen . Sent: Tuesday, lanuary 20, 2015 12:38 PM To: 'Kenneth- Florey' Cc: Subject: RE: Board Room Capacity Mr- Florey, Your claim that the Board Room has adequate space for the general public is not true. In fact, your own explanation points to a very limited seating availability of 30 in that room. Of those 30 seats, contrary to your claim, half have been routinely been reserved by COD, thus bringing the number of available seats in that room to 15. When you reserve seats that is hardly a ?rst come ?rst seated bases. More disturbing is your assertion that by providing another room with broadcast capability that is considered suf?cient. It ?y?s directly in the face of the Gemrin case that your ?rm claimed it would follow. When a person is not able to be in the very room that the meeting is taking place in, they are limited. to merely attendance and void of the opportunity of participation, which take many forms outside of their right to speak. A citizen has a right to protest and although they may be ejected after the ?rst warning for any disturbance, their-right to protest has been restricted if they cannot fit into the very room which the board is seated at. The so called state of the art technology you reference has proven to be ?awed in several aspects. As con?rmed with the COD technical person who worked on the problem last month to no avail, the very system you elevate to ?state of the art?, the video and audio feed has a hard wire problem that is causing constant ??ash? effect while viewing making. it very dif?cult to watch. If you would like video evidence of that let me know. More importantly, those viewing from that room are unableto see board members interactions during a lot of the meeting because the video feed is focused on the speaker. Not being able to see the responses of the board members or there smiths, laughing etc. during public comment limits the public attendance because they are not seeing that part of the meeting. 1 also would make note that. your ?rm speci?cally outlined criteria that assured the Attorney General that COD would make appropriate arrangements to move to a larger space. You have received at least two of those requests for the January meeting. Both outlined the request for COD to accomodate so that the citizens can View the meeting live. By all indication you prefer to rack up legal hills and play word games. That being the case, below is the text yonr ?rm provided the Attomey General. Exhibit Certainly. if the College had adequate advanced. notice that large overwhelming the board room was planning to attend a meeting. and that thedplar . preferred to see the meeting live instead of by e-madcast. the pollege won me arrangements to more to a larger space. This l8 what [8 required by the Gem the College takes no issue with this requirement. Please define adequate advanced notice. Please de?ne large crowd. Please de?ne greatly overwhelming the board room. It is apparent that your intentions are not to seek what. is in the best interest of the public for the January 2015 meeting so considering this communication the of?cial notice pertaining to the Regular COD Trustee meeting for February. i am providing you adequate notice that a large crowd that will greatly overwhelm the board room is planning to attend the February Regular COD Trustee meeting and that those planning on attending (planned attendees) preferred to see the meeting live instead of by broadcast. If this request is not sufficient for you or COD to make such an accommodation please provide the speci?c criteria needed for that to happen. In closing, it would make far more ?scal sense for COD to simply accommodate the public as they assured the Attorney General they would instead of forc'mg the citizens to take legal action. If youhave any questions please let me know. Thar?cs Kirk Allen Edgar-County Watchdogs From: Kenneth Florey Sent: Tuesday, January 20, 2015 10:47 AM To: Kirk Allen Cc: Vazquez, Res Subject: Board Room Capacity Dear Mr. Allen, You have requested that the College move the location of its upcoming Board meeting to a larger room for the January 22, 2015 meeting. Please be advised that the College will continue to hold its meetings in the College?s Board Room. The Soard Room is specifically set up for board meeting purposes and has comfortable and adequate space for the general public. The Boa rd meeting also will be broadcast with state of the art technology in comfortable and convenient rooms adjacent to and near the Board Room which are open and available to the public. The seating 2 Exhibit capacity for the main Board Room is 30 and the overflow rooms have additional seating capacities for up to 200 people. All seating is generai seating, on a ?rst-come ?rst seated basis. Should you have any questions, please contact me. Ken Fiorey Kenneth M. Florey Attorney Robbins Schwartz 55 W. Monroe St, Suite 800 Chicago, illinois 50503?5144 p: 312.332.7760 f: 312.332.7768 Robbins Schwartz This message is con?dential. This message may also be privileged or protected by Work product immunity or. other 13% and regulations. if you have received it by mistake, please rewsend this communication to the?sender and delete it from your system without copying itor disclosingits contents to anyone. Exhibit