ELMHURST, IL – The Elmhurst City Council, which the attorney general found in violation of the state's open meetings law, must now pay a watchdog for his legal costs.
In July, DuPage County Judge Anne Therieau Hayes ruled the city was liable for watchdog Edgar Pal's costs. She cited the mayor's public statement in justifying her decision.
In summer 2022, the attorney general's office determined the City Council broke the Open Meetings Act in November 2020. That was when the council discussed behind closed doors a construction permit for a nursing home's expansion.
The attorney general's ruling was in response to a complaint filed by Pal, who has prevailed in such matters over the city and the local school and park districts before.
More recently, the judge determined the city owed Pal $8,161.
"The City is making that payment now, and the case will not be appealed," Pal said in an email to Patch last week.
City records show the city has spent more than $30,000 in its legal battle with Pal. And that number does not include the legal bills after September.
In summer 2022, Mayor Scott Levin asked the attorney general to reconsider the decision. But the state agency declined.
On Sept. 6, 2022, the council voted to release the minutes and recording of the closed meeting. Three days earlier, Pal sued the city over the matter in DuPage County Court.
At the meeting, Levin said the city was right to go behind closed doors. But he said the city believed in following the attorney general's opinions on open government matters.
"In a meeting with our attorneys today, we considered defending that lawsuit to prove our point," Levin, a lawyer himself, said at the meeting. "And we talked about that in executive session about whether we should defend that lawsuit. In the end, we decided the attorneys' fees that would be incurred would not justify the effort."
However, Judge Therieau Hayes pointed to that statement as the reason for requiring the city to cover Pal's legal fees.
From what Levin said, the judge contended, it was clear the lawsuit caused the production of the documents and that the lawsuit was "reasonably necessary" to obtain the records. That met the threshold for reimbursement of legal costs in Illinois, she said.
The city asserted Pal was told beforehand the City Council was set to vote on whether to release the records in question. That prompted Levin to question whether Pal filed the lawsuit in good faith.
But Pal said he had 60 days to file a lawsuit after an attorney general's determination. That period ended Sept. 3, which was before the meeting. Nothing in the record showed Pal was informed the city intended to follow the attorney general's determination before the 60 days ended, the judge said.
The judge said that even if Pal had been given the city's resolution ahead of time, it wasn't clear what portions of the minutes and recording that the city would release.
In an email to Patch on Friday, city spokeswoman Kassondra Schref maintained Pal had notice from the mayor about the council's pending action. She said Pal could have waited until Sept. 6 before suing or dismissing his lawsuit when he received the records two days later.
"Instead, he made the suit all about attorneys fees, eventually demanding in excess of $42,000," Schref said. "The City defended that claim due to the exorbitant amount. Eventually, the court awarded Mr. Pal $8,161.60 of the $42,000 he requested in fees."
She said the city disagreed it should owe Pal any money, but would follow the judge's order to finalize the matter.
In an email to Patch on Friday, Pal defended his decision to sue.
"Mayor Levin's assurance that the City Council would consider the matter on September 6 carried no weight," Pal said. "By the time the City Council held its meeting that night, the Council would have had full knowledge of whether they were being sued."
Pal said the city's costs could have been far less if it admitted the lawsuit was necessary and filed in good faith.
"It is also noteworthy that Mayor Levin and the City's spokesperson both cited a desire to mitigate the legal expenses that would be incurred, yet the City continued to fight the lawsuit anyway," he said.
The city has said it closed the meeting under the legal exception that allows matters involving pending or threatened litigation to be discussed privately.
In the September 2022 meeting, Levin said the lawyer for the nursing home, Elmhurst Extended Care Center, had threatened to sue the city if it did not extend the home's permit.
He also said the city considered suing the nursing home in 2020 to get a temporary restraining order to prevent any construction work.
In April 2021, the nursing home informed the city it would abandon the project for the time being.
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