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AG Counselor: Elmhurst Violated Law by Not Disclosing Parking Deck Cost Analysis

Elmhurst resident Tamara Brenner, whose request for financial analysis of the Addison Avenue parking project was denied, filed a request for review with Illinois Attorney General's office.

The Addison Avenue parking deck project has seen several incarnations and been the topic of much debate, particularly with regard to its proposed 6-story height. (File photo)
The Addison Avenue parking deck project has seen several incarnations and been the topic of much debate, particularly with regard to its proposed 6-story height. (File photo)
Source: Citizen Advocacy Center, Elmhurst

For the second time in less than a year, the Illinois Attorney General’s public access counselor has determined the City of Elmhurst failed to comply with state open government laws in relation to the Addison parking deck project. 

The first determination, made in February 2013, ruled that the City violated the Open Meetings Act when it held two closed-session discussions on the Addison project. Pursuant to the Attorney General Office’s instruction in that case, the audiotape recordings of both meetings were released to the public

The second determination letter was issued Dec. 31, the end result of a Freedom of Information Act request for review filed with the public access counselor by Tamara Brenner, a long-time community activist and observer of Elmhurst City Council meetings. 

FOIA is a state law mandating public access to government records that is meant to ensure government operates in an open and transparent manner. Under FOIA, all government records are presumed to be open to the public and must be disclosed upon request unless a government body can prove by clear and convincing evidence that a valid exception applies. 

On Sept. 16, the City held a Committee of the Whole meeting during which cost estimates for the Addison project were presented and discussed in open session: the baseline 45-ft structure would cost $10.5 million to $11.5 million, and increasing the building height to 65-ft would add $3 million. (Read an article about that meeting here.) On Sept. 18, Brenner filed a FOIA request seeking documentation to support the financial projections that had been presented. 

At first, the City provided no responsive documents, causing Brenner to submit a clarification of the request. The City then availed itself of a one-week extension before issuing its response: an outright denial claiming the "pre-decisional records" exemption. This exemption allows public bodies to withhold documents that are drafts, notes and/or recommendations used to help the public body form an opinion about an issue outside of public scrutiny. 

When Brenner inquired about the denial, the City stated there were two documents at issue: a draft proposal, which included some handwritten notes, and a memo. The City also stated that some of the financial information had been obtained through phone conversations for which there were no corresponding records on paper. The City declined to reconsider its decision to withhold the written records and Brenner then proceeded to file the request for review with the Attorney General’s public access counselor.   

With the assistance of community lawyers from Citizen Advocacy Center in Elmhurst, Brenner maintained that the documents should be disclosed because: 
  1. the City has been contractually obligated to build the project since 2009 and any financial information was factual in nature
  2. the Council at no time deliberated the accuracy of the financial analysis
  3. the only policy decision under consideration was building height.
Brenner further argued, in the unlikely event that the documents were deemed to be pre-decisional drafts, that Elmhurst Mayor Steve Morley cited the documents in open session, thereby waiving any exemption that might otherwise allow non-disclosure. 

The Attorney General’s public access counselor reviewed the documents, which encompass draft proposals produced by the general contractor and a memo produced by the city manager, and agreed with Brenner’s conclusion. The documents contain factual information rather than opinion and therefore are not pre-decisional. 

The City has been instructed to: 
  1. disclose the draft proposal prepared by the general contractor because the general contractor's financial interest in the multi-milliondollar project is not the same as the City’s interest and thus the document is not an intra-agency communication
  2. disclose handwritten notes which appear on the draft proposal prepared by the general contractor because those notes are factual in nature, except that the City may redact the portion of the handwritten notes which were made by the assistant city manager because these appear to be pre-decisional opinions which were not specifically referenced by the mayor in open session
  3. disclose the memo from the city manager because the memo was not an expression of opinion
“While I’m pleased with the decision of the public access counselor, I’m disappointed that the City continues to be so adversarial when it comes to meaningful public involvement," Brenner said. "Although lip service is given to 'transparency,' the City has now been found in violation of both the OMA and the FOIA related to the same controversial project within the past year."

Citizen Advocacy Center Executive Director Maryam Judar added, “It is unacceptable the manner in which the City has moved forward on this project and equally unacceptable that the City continues to rebuff concerns expressed by public officials and the public regarding this project. Why the City feels the need to shroud this project in secrecy is a question that remains unanswered; however, it does provide thoughtful insight into the apparent internal operations within City Hall. We were glad to assist Ms. Brenner in obtaining a favorable determination and will continue to hold City Hall accountable.” 
Doremus Jessup January 06, 2014 at 08:40 PM
Well done Miss Brenner!
Lauren Pittelli January 07, 2014 at 08:20 AM
Great job holding City officials to the law! I hope common sense and community wishes prevail on this long standing issue, and we revert to a four story plan. We need to focus our resources in other areas.
richjoe January 07, 2014 at 09:02 AM
Tamara Brenner, watch your back! These gangsters, I mean politicians, believe in "paybacks are a bit__!
Kathy S. January 07, 2014 at 09:08 AM
Grateful to Ms Brenner and the Citizen Advocacy Center to shedding light on our city government. We deserve better transparency. Thank you!
Thomas Cruse January 07, 2014 at 10:29 AM
I am glad that Ms. Brenner is pushing the city to disclose financial implications for this project. I never thought that the city should be involved in real estate transactions and having the citizens fund development projects. The city and the aldermen do not know what they are doing and it will cost us all in higher taxes. Our taxes should be lowered, not increased every year! Tom Cruse
Steve Randag January 07, 2014 at 11:52 AM
Ms Brenner is more effective than the Tribune, Elmhurst Independent, etc. at keeping city government honest.
Lived in 5 other metro areas... January 07, 2014 at 01:33 PM
Thank you so much, Karen, for writing this, and Tamara for keeping an eye on our officials. I'm disappointed in our officials as I often am lately. But I am proud to have you two working on our behalf! Awesome. Can't thank you enough.
Karen Chadra (Editor) January 07, 2014 at 01:52 PM
Thank you, but I can't take credit for writing this particular news release. It was submitted by the Citizen Advocacy Center, as noted at the top.
Chance the Gardener January 07, 2014 at 02:34 PM
Wow - the city is really getting a legal black eye here! Do we have a weak city manager ? an incompetent city attorney ?, or an aldermanic clique that needs to find something better to do with their spare time than trying to act like commercial real estate developers?? I say if Willis Johnson needs parking, sell the God D^*# lot to him for a dollar; eliminate the downtown TIF, and stop expecting us taxpayers to further subsidize the merchants that we already patronize.
Joe O'Malley January 07, 2014 at 04:33 PM
Great job Tamara Brenner!!! Let's name the names of the players that were uncooperative and impeded transparency regarding this issue. Furthermore let's take them out next election. This pissing away money on nonmarket driven public projects has got to stop. We already have an imperial president in DC. Come election time, terminate their re-election chance at the ballot box.
Me January 07, 2014 at 05:30 PM
The city officials in this city are out of touch with the residents that currently live here and have lived here for years and year. Everything is about how they will look and what they can say they were part of. I don't have any idea where some of the new ideas come from, it seems no research is done. Just do it and everyone that has been a life long resident will suffer. Time to take charge of our town!!
Elm Forest January 07, 2014 at 06:11 PM
RECALL Election! Maybe it's time to consider our options as a community. This is not the first breach of trust with the city government. I hear no remorse from the elected and appointed office holders. Maybe it's time these people no longer occupy the offices.
D. Carlquist January 07, 2014 at 08:48 PM
Kudos to Elmhurst's Citizen Advocacy Center for playing an invaluable role in this process with its legal advisory services and mission of more accessible, transparent and accountable government.
Expose Them January 07, 2014 at 10:54 PM
Remember this behavior by our government on voting day.
Jim Court January 09, 2014 at 08:19 PM
I completely admire the Citizens Advocacy Center and believe Tamara to be a very smart woman. I also believe there is more than one perspective. I could imagine that if I were in a leadership position and would desire a grand vision for our community and place every decision in a longer term context. In our form of government, getting things done often degenerates into endless dialogue and opinions and everything languishes. Hahn street for example. I personally would not want to be a Mayor or elected official where I felt my hands were tied by every whim of every person. How would I proceed ? If I were Don Stephens from Rosemont I would plow ahead, not be overly concerned with my critiques, accept that human nature is not perfect and expect a little self interest to exist. I would create a dynamic and successful community that drew people from everywhere and as a result, our community would succeed. Now if I were Mayor of Elmhurst or an elected official I might want to push projects through in what ever way I could. What other choice would I have? Understandably, I might be like Pete and lash out at all the armchair quarterbacks. Throw the damn ball would be my attitude. Yes, our leaders need to make sure that our taxpayers do not get overly burdened with financial costs. That should be a given. In many ways we are fortunate to have an interest in this project. If it were up to me I would have bulldozed almost all of Downtown years ago and built from new. I like long term views. Visionary thinking is more desirable that short term views. Personally, if the financials are acceptable I am in favor of six stories. I prefer greatness to average.
Steve January 10, 2014 at 06:28 AM
Jim court - I applaud you for always voicing your views but I thought I would ask you to explain your position. There are NO dollars for a one story parking deck let alone 6 stories. When this project moves ahead no matter how many stories it will be funded by bonds and therefore more taxes for everyone. What is your justification for 6 stories. Do,you any facts on why you would build that large of a deck in the downtown area? In any case, this is an article about what is deemed by the AG office elmhurst didn't respond correctly to a DOIA request. I don't see why there should be any reason that this should ever happen. It sounds to me the AG agrees. Remember, this is the second violation of the city, FOIA now and open meetings act last year. Not good.
Jim Court January 10, 2014 at 10:28 AM
Steve, I share your concern about potential economic impact and perhaps I should research that some more. I did mention that in the article. While I am always against the abuse of power, I find that democracy often seeks the lowest common denominator consensus. Why I am implying is similar to what I experienced in a townhouse association. Many fear based and anxious people who had no understanding of real estate, property management, building community, etc, manipulated themselves onto the Board. The have no vision, no experience, yet they control outcomes. The place continues to deteriorate. Since they control voting and communications, they are impossible to remove. Just because some are opposed to this building does not mean they are right. I guess if I were a Mayor and found myself in the position of truly believing that this property was in the best long term interest of the community and really wanted to get this done I might find myself doing whatever I could to prevent the naysayers and upper hand and destroy the possibility of getting the project completed. A democracy often represents the lowest common denominator. I want nothing to do with that. Popularity means little to me. Miley Cyrus is popular. So what !. Jerry Springer had a large following. So does wrestling. Maybe I am an elitist wanna be. I truly admire educated people with a strongly ethical personality but I also admire effectiveness. If the economics were good for the community and I were the Mayor, many would end up disliking my ways. I would ultimately ignore the critics, push the project ahead, knowing I did the right thing for the benefit of our community. I am not talking about corruption or graft. That is theft and it is never ethical or right. Leadership is about analyzing problems deeply and correctly and the independence to make decisions to do the right thing and ultimately allow yourself to take positions that are not always popular. Perhaps our Mayor, if he truly feels that he is doing the right thing by supporting this project, should take their positions to the public along with the Aldermen that support this project. Be proactive and not passive. I am really tired of letting projects stand still while we listen to every persons opinion. If medicine did this every patient would die before every janitor offered their opinion. I believe that communities such as Evanston that embrace these type of buildings show substance and progressive thinking. Elmhurst seems to be mired in an extremely conservative and fear based approach. I would have made Cresent Court into two high rises that symbolically represented the Twin Towers, created more green space, and would have been the Beacon of eastern DuPage County. Instead we let low lying projects get built with inferior exterior materials that look cheap and then think we did the best could. Am I the clean shaven man in werewolf land? Perhaps.
Lived in 5 other metro areas... January 10, 2014 at 05:51 PM
I think and I hope that Tamara's efforts express how following protocol consistently keeps things transparent. So that those of us not called to community service can simply look at factual summaries, draw the same conclusions to agree or disagree. By not following protocols, we all become distrusting. Now for my one person opinion. We have 3 parking decks. Are they full?
Jim Court January 10, 2014 at 09:24 PM
I think that proximity drives usage. The time of day and the day of the week are other considerations. Elmhurst really needs a destination activity/business that draws from the larger area. I have made suggestions but seem to get little response.

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