ORLAND PARK, IL. (ECWd) -
We live in Illinois, so we're accustomed to all sorts of schemes, stunts, and shenanigans. If you've been following the saga of the Orland Park Public Library Child Porn Scandal then you've seen eight months' of high drama and unbelievable intrigue as one public library in the southwestern Chicago suburbs has paid the law firm Klein Thorpe Jenkins close to $100,000 at this point in an emotional battle to keep child porn accessible in the library (despite there being no obligation on the part of any government body to provide access to child porn). Yes, they really and truly have dug their heels in and have decided to die on the hill of fighting to keep the library an access point for child porn. As bizarre as that is. Even in Illinois, of all places, this should be shocking.
One of the most interesting twists in this mess was the decision by the Orland Park Public Library Board of Trustees (the OPPL-BoT) in February of 2014 to pull a stunt that might even give Rod Blagojevich and Mike Madigan pause. This is one of those things that a public body can't possibly get away with in the end, for the simple fact that if a stunt like this could pass muster then every public body in this state would be pulling it. We have here, folks, an egregious F-U to the Open Meetings Act that we're calling "The Dennis Walsh Watusi", named after its inventor, Dennis G. Walsh of the firm Klein Thorpe Jenkins.
Setting Up the Illegal Special Meeting
Here's how this monstrosity was invented (and what ramifications its success would have for the rest of our state):
As you know if you have been following the Orland Park Public Library Child Porn Scandal, the OPPL-BoT came under scrutiny in October of 2013 when it was discovered that the Library had allowed at least one man in the past to access child porn in the building without calling the police. When criticized for this, the OPPL-BoT went into "crisis management mode" and lashed out at its critics, following the advice of the American Library Association (which made "expert crisis managers" on its payroll available as advisors to the Library). From October through December of 2013, the OPPL-BoT engaged in reprehensible tactics designed to scare away its critics, including using the Orland Park Police Department as willing goons and making false police reports on its opponents in an effort to get them to give up and go away. These critics, Megan Fox and Kevin DuJan, weathered the storm and kept attending monthly Board Meetings while continuing to use FOIA requests to dig deeper into the goings-on at the OPPL-BoT. The Library seemed to realize in January of 2014 that the intimidation efforts, police abuse, and personal attacks weren't going to work on Fox & DuJan…and so the OPPL-BoT quite obviously pivoted and started using a new technique, this time putting their lawyers at Klein Thorpe Jenkins in the forefront and attempting different legal maneuvers to silence or get rid of Fox & DuJan.
Anyone with a working, cursory knowledge of the Open Meetings Act could see that month after month the OPPL-BoT violated the OMA (though it takes the Attorney General's Office of the Public Access Counselor many, many months to finally get around to writing a letter of determination confirming that). In January of 2014, Nancy Wendt Healy (sister of George Wendt, who played "Norm Peterson" on the TV show "Cheers" in the 1980s) claimed that her lawyers at Klein Thorpe Jenkins advised her that she had the power to prevent Fox & DuJan from talking about the accessibly of child porn in the OPPL because the OPPL-BoT didn't want to hear any more about the illegal activity happening in the Library. They wanted to get back to the "good old days" when nobody from the public attended their meetings and they could largely run things like a social club of their own. Fox & DuJan got Healy on tape making this outrageous violation of the OMA and promptly filed a Request for Review on her behavior (which they of course won, though it took the PAC until May of 2014 to finally issue the letter of determination).
You can watch this here:
If you notice in the video above, no lawyers were present at the January Board Meeting. This seemed strange at the time, because the OPPL-BoT had at least one lawyer present at every meeting since Fox & DuJan started attending in October of 2013. It's fair to speculate that the reason no lawyer was present was because the OPPL-BoT wanted to try restricting the topics that Fox & DuJan spoke on…possibly to see what would happen. Would the two amateur detectives and Orland Park watchdogs accept the restriction or would the challenge it? It's not hard imagining the attorneys at Klein Thorpe Jenkins shrugging "It's worth a shot!"
In the video above, when pressed for which lawyer told her she was allowed to violate the OMA Nancy Wendt Healy stammers and refuses to give a name. Did she not remember who it was, even though there are only three main attorneys who ever bill sizable hours to the OPPL-BoT? One is E. Kenneth Friker, who is an elegant, older man who reminds people of Mr. Drummond from "Diff'rent Strokes"…another is James Fessler, who abrasively smirks and behaves in an immature and catty manner…and the other one is Dennis G. Walsh, who would make an excellent Edna Turnblad in a community production of "Hairspray". It's just not credible that if any one of these men told you something along the lines of "The OMA does not apply to you and you can violate people's freedom of speech and get away with it" that you would not remember which of these very distinct characters told you such a thing.
Which leads a reasonable person to think one of two things happened: (a) either the OPPL-BoT took the opportunity to make up lies and do whatever it pleased on the one night that their lawyers weren't at a Board Meeting or (b) the lawyers purposefully weren't at the meeting so they would have plausible deniability regarding whatever happened that night.
Since the OPPL-BoT continues to prove it has no respect for either the OMA or the Attorney General's Office, it's also reasonable to assume there was a discussion of "what's the worst that can happen to us?" in terms of attempting this January restriction on Fox & DuJan's legal right to address any topic they want before a public body. "We might as well try it and see if we can get away with it," they could have been telling themselves.
Knowingly Holding an Illegal Special Meeting on a Holiday
Less than two weeks later, things got really interesting when on the morning of February 12th, 2014 (Abraham Lincoln's Birthday) Fox & DuJan got a Google alert that the Chicago Tribune had printed a story that morning saying that there was going to be a special meeting of the OPPL-BoT where they would not only unexpectedly hold a vote on whether or not to effectively continue allowing child porn in the building but also where they would vote to restrict public comment and also install a brand new Board Member. No notice had been given of a special meeting and Fox & DuJan were taken by complete surprise, since the normal monthly Board Meeting for February was coming up that next Monday, on February 17th.
This was a complete shock, like a great white shark attack in the middle of a crystal clear lake. BAM! The OPPL-BoT momentarily got the better of Fox & DuJan, because they never thought that the Library Board would hold a surprise, special meeting on a legal holiday just to ram through votes on all the controversial and terrible things they wanted to vote on. The OPPL-BoT also declared there would be no public comment allowed at this special meeting.
Fox & DuJan immediately tried calling the Attorney General's Office to complain about what the OPPL-BoT was doing, but of course it was closed. The entire capital of Springfield was closed. Courts were closed. This could not be a coincidence that the OPPL-BoT would choose to hold a surprise special meeting on a legal holiday when it had a docket of at least 7 controversial things it wanted to hold a vote on…and they wanted to do it at a meeting where they would prohibit public comment…on a day when they knew that no one would answer the phone when Fox & DuJan called for help to stop them.
It's pretty hard to believe that Dennis G. Walsh didn't come up with this stunt (or at least authorize it). Starting at about 10am that morning on 2/12/14, Fox & DuJan sent emails and faxes to the OPPL-BoT members and to their attorneys at Klein Thorpe Jenkins warning them that February 12th is Abraham Lincoln's Birthday and is an official legal holiday in our state on which the OMA does not allow any special meetings to be held. The OPPL-BoT has set the third Monday of every month as its normal meeting day and the OMA is very clear in forbidding a public body from scheduling any special meetings on a holiday if that holiday does not fall on its normal meeting day. February 12th, 2014 was a Wednesday, and clearly not the OPPL-BoT's normal meeting day (which would have been Monday February 17th…just five days away!).
The OPPL-BoT and its attorneys ignored Fox & DuJan's emails and faxes and proceeded to have the illegal meeting despite being informed that it was against the law. Megan Fox made it to the meeting and was denied the right to speak in public comment, despite this supposedly being an open meeting. When she objected to the meeting being held on a legal holiday, Board Members Diane Jennings and Denis Ryan shouted her down, with Ryan in particular telling her to shut up because his wife is a Chicago Public School teacher and she had to work on February 12th (despite the CPS FaceBook page saying that schools were closed that day, so who knows what Denis Ryan's wife was really up to or where she was when she told him she was at work).
You can watch this travesty here:
It's just the sort of disgusting behavior by elected officials that gives our state its well-deserved bad name. And there sat Dennis G. Walsh from Klein Thorpe Jenkins for all of it.
After the meeting, Megan Fox confronted Walsh and told him that everything they just did was illegal and would be considered "void ab initio" (meaning "void from the beginning") because no special meeting could be held on a legal holiday. Walsh scoffed at Fox and told her that he "knew the law" and walked away smiling, believing he had conceived of an ingenious stunt that enabled the OPPL-BoT to ram through 7 controversial measures in a meeting without having to listen to public comment, where its principal critics were surprised and had no prior knowledge that the meeting would be happening that day. You can see in the video how smug all the Board Members looked that day, particularly Diane Jennings and Denis Ryan. They all thought they had discovered a loophole that solved all their problems.
Only, Fox & DuJan immediately filed a Request for Review on the illegal meeting. Several other community watchdogs actually wrote their own complaints independent of Fox & DuJan. The AG's office received a total of six complaints in all over this illegal meeting. Once the Public Access Counselor received these, that office moved faster than normal to send the OPPL-BoT notice of the complaints…and the OPPL-BoT was forced to announce that it would be holding a vote on 3/17/14 to "ratify and affirm" everything it did on 2/12/14, since "the legality of the Board's special meeting on February 12th" had been questioned.
Hmmm. Isn't that interesting? It's almost as if this was the plan all along, since Dennis G. Walsh was busy at this time telling the Chicago Tribune that "Abraham Lincoln's Birthday is not a holiday" and that the OPPL-BoT doesn't have to allow public comment if it doesn't want to. It was at this time that it was discovered that Dennis G. Walsh is one of the co-authors of a book called "The Sunshine Laws", which is sold by the Illinois Municipal League and purported to be a source of information for public bodies regarding how to comply with the OMA and the Freedom of Information Act in our state. How can a man who literally wrote the book on the OMA not know that public comment is required at every Open Meeting and that no special meeting could be held by the OPPL-BoT on February 12th (a legal holiday)? Not only is this man the author of a book on the Open Meetings Act, but he's a lawyer who presumably knows how to use a computer and has a working LexisNexis password. Are we honestly to believe that he never thought to check if the date they intended to hold a special meeting was a holiday? Didn't he wonder why all the courts were closed that day?
We live in a world that tends to give everyone the benefit of the doubt (no matter how heinous is their behavior), but in this case the reality is that one of these two things must be true for Dennis G. Walsh: (a) either he is an incompetent attorney who should be charged with malpractice due to his ineptitude in this matter or (b) he has been caught concocting a strange and elaborate scheme by which he deliberately advised and encouraged his client (a public body) to violate the law and intentionally commit a Class-C misdemeanor.
Because no one seems to have ever been charged by the state's attorney with the crime of violating the OMA, it's reasonable to believe that Walsh advised the OPPL-BoT that nothing really bad would happen to them if they held that illegal meeting. Clearly, Klein Thorpe Jenkins as a firm believe that the Attorney General's Office is a joke. Why else would Nancy Wendt Healy readily admit on camera that Klein Thorpe Jenkins told her to go ahead and violate the OMA?
Can't "Ratify and Affirm" an Illegal Act
The true contempt this firm has for our laws in Illinois is evident in this "ratify and affirm" gambit that Walsh advised the OPPL-BoT to play next. You really have to hand it to this man for reaching Rod Blagojevich heights of "brazen". You also need to think about what this means for every public body if the Attorney General allows the OPPL-BoT to get away with holding an illegal meeting, ramming through a bunch of unpopular things without public comment, and then supposedly making it all legal by holding a "ratify and affirm" session at a later day. You shouldn't have to be told that if this is allowed to stand that every public body in the state will start holding surprise, near-secret meetings in the dead of night, not allowing public comment, holding no recital or deliberation, rushing through votes for final action, and then a week or two later holding an Open Meeting where they just quickly "ratify and affirm" all the things that they did. This is a clear end-run around the Open Meetings Act, which Dennis G. Walsh seemingly invented.
It's his Watusi. The "Dennis Walsh Watusi", whereby he claims that even though everything done at the February 12th, 2014 illegal meeting was void ab initio he can dance around the OMA by simply having the Board take five minutes at the start of the March 17th, 2014 meeting (St. Patrick's Day…so they were all dressed in festive green for the occasion) and magically make all that legal and no one can do anything about any of it.
Watch the videos of what went down at that "ratify and affirm" meeting:
Are you horrified? You should be.
Disastrous Effects Throughout the State if Upheld
Yes, it's a public library board in Orland Park. The abbreviation "OPPL-BoT" makes these people seem more menacing and powerful than they really are…but they are indeed an elected public body being advised by the law firm Klein Thorpe Jenkins that the rule of law does not apply to them. The precedents set by everything they get away with will not be lost on, say, the State Board of Elections or the Chicago School Board or the governing bodies of any number of municipalities across our state. If the "Dennis Walsh Watusi" is allowed to be an end run around the OMA then it's a guarantee that this maneuver will be used against you sometime soon.
Why on Earth would any public body in our state ever again vote on anything controversial in a proper, Open Meeting when the "Dennis Walsh Watusi" would allow them to hold the votes improperly and then magically make those votes legal by simply "ratifying and affirming" them at a later date? No deliberation required. No recital required. No public comment required. Just the "Watusi"!
As of this writing, Tola Sobitan at the Public Access Counselor's Office has the complaints about that March 17th meeting and the "Dennis Walsh Watusi" on her desk. There's no indication of when a determination from the PAC will come down. In the meantime, the lawyers of Klein Thorpe Jenkins insist upon enforcing all of the restrictions to public comment that were passed illegally on 2/12/14 and then "ratified and affirmed" improperly on 3/17/14. These restrictions include: (a) the public not being allowed to speak about the same subject more than once, (b) residents of Orland Park be given speaking preference over non-residents, (c ) people wishing to speak during public comment not being allowed to use electricity to record meetings, (d) no one being allowed to address the Board via video conference, etc. None of these are reasonable restrictions under the OMA, but that doesn't matter to the OPPL-BoT either.
And, of course, Klein Thorpe Jenkins insists that the OPPL-BoT's vote on 2/12/14 to continue allowing child porn to be accessed in the Library over the still-unsecured Internet still stands as well, since that too was "ratified and affirmed" on 3/17/14.
What really needs to happen is for the PAC to order the OPPL-BoT to make the public whole again by voiding everything they did on 2/12/14 and then "ratified and affirmed" on 3/17/14 and putting it all on a new agenda at an Open Meeting that is convenient to the public where proper recital and deliberation is done on each item and public comment is allowed at the meeting so that the community can give the OPPL-BoT an earful about these policy votes it felt it needed to ram through via the "Dennis Walsh Watusi".
Stay tuned to see if that happens…but be forewarned that if the PAC allows this to stand that some public body near you is going to be practicing the Dennis Walsh Watusi as well. And why wouldn't they if chicanery like this acceptable in our bedraggled state?