Thursday, March 27, 2014

Response re Orland Park Public Library Request for Review - PAC 27987 - Open Meetings Act

GmailDan Kleinman

Response re Orland Park Public Library Request for Review - PAC 27987

Safe Libraries Wed, Mar 26, 2014 at 2:04 AM

Cc:,,,, "Mary K. Weimar" ,,,,,,,,,,,

Dear Ms. Pratt and Tola Sobitan,

I have received the letter from Tola Sobitan dated 19 March 2014 captioned “FOIA Request for Review — 2013 PAC 27987.”  It invites me to comment on the Orland Park Public Library responses. I note the letter I received did not contain the stated attachment.  Therefore, please excuse me if I make any errors as a result, but I’ll make comments regarding a letter dated 14 March 2014 I received a day or so ago from your office written by Dennis G. Walsh of Klein, Thorpe and Jenkins, LTD [KTJ] captioned, “FOIA Request for Review — 2014 PAC 27987,” and also a letter dated 3 March 2014 written by the same person of KTJ captioned, “OMA Request for Review 2014 PAC 27771; OMA Request for Review 2014 PAC 27713.” 

A violation of the Open Meetings Act is a very serious matter.  Indeed March 16-20 is Sunshine Week ( ) where “open government is good government.”  Sadly, as one source explains, “There’s no downside for public officials to violat[e] the Open Meeting Law.”  “Sunshine Week: Most Public Boards Aren't Fined for Open Meeting Law Violations” ( )  

In the current matter under review, as I explained in my original Request for Review ( ), the library refused to allow me to speak at a regularly scheduled meeting, actively removed my name from a speakers list on that day, wrote a library policy that specifically excluded me from participating in future meetings, quickly rushed together another meeting without adequate notice to the public to pass the policy to block me and to allow porn on public library computers despite that being against state and local law and even the library’s own policy, set the meeting for a legal holiday, and refused to allow the public to speak.  To this day the library and its attorney continues on as if such behavior has no consequences.  

The library is essentially getting away with illegality that enabled it to pass an illegal policy (Internet porn in Illinois libraries is precluded by Illinois library law, etc., let alone common sense and community standards).  It did this on a legal holiday without public comment precisely because it knew the community is in large measure opposed to the illegality and the harm it had already wrought in the community, including sexually harassed library workers who were and are told they can quit if they don’t like the porn, unreported sex crimes including child pornography, people who refuse to use that library while porn runs rampant, etc.  The library has shown no interest in complying with the law in the future either. 

It is you and only you, the Attorney General of Illinois, who is in a position to put an end to this, to stop the illegality, to restore open government, to restore good government to Orland Park, Il.  Only you can do this.  To that end, you began an investigation.  You specifically asked the library to respond.  They is only fair, after all, and it’s the law.  The library did respond.  It responded with a number of responses from Dennis Walsh, Esq., who is a member of the KTJ law firm hired by the library.

Let’s look first at the first KTJ response dated 3 March 2014.

Given the seriousness of the matter including the total violation of the public trust, and given you are investigating this matter as required by law, you received a response from the library dated 3 March 2014 that is entirely without substance.  Instead, the response was a continuation of the library’s and the law firm’s efforts to besmirch Megan Fox and Kevin DuJan for bringing sunshine to the matter of unreported crimes including child pornography in a library that is violating the law and allowing porn despite the law.  To cover this over, the library is besmirching Fox and DuJan (for example on its home page or by making false claims with the police ) and attempting to pass a policy that would specifically allow Internet pornography, and doing so in an illegal fashion that violates the Open Meetings Act.  The library’s response to you is an attempt to carry on with that very goal as it makes only ad hominem argument and completely ignores the substantive issues in an apparent attempt to obfuscate its illegal actions.

Now look at the specific lawyer who wrote that library response.  Look at his law firm.  It is Dennis Walsh.  The firm is KTJ.  Why is this relevant?  It is relevant because Dennis Walsh literally wrote the book on sunshine laws.  The book is actively sold by the Illinois Municipal League for $12 ( ). 

KTJ holds itself out as experts in library law.  It claims to have over 50 library-related clients ( ), but it also make this claim at least five years ago ( ).  So it likely KTJ has many, many more library clients.

KTJ points out that it wrote library legislation ( ).  KTJ trains library trustees ( ).  KJT holds “Ask the Library Lawyer” meetings ( ).  KTJ teaches at the Illinois Library Association a class called, “FOIA, Open Meetings and Mock Library Board Meeting” ( ).  KTF presented, “An Overview of State and Federal Laws Affecting Libraries: What Library Directors and Trustees Need to Know” at the Illinois Library Association ( ).  I could go on with many more examples where KTJ details its depth of knowledge and expertise in library law and associated municipal law, and instances where KTJ is held out by other organizations as experts in library law and municipal law.

KTJ even publishes on it web site the text of and commentary on Illinois library law ( ), the Freedom of Information Act ( ), and the Open Meetings Act [OMA] ( ).

Regarding the OMA, KTJ specifically says, “library board meetings must be conducted in accordance with the Open Meetings Act.” ( )

So Dennis Walsh and KTJ literally hold themselves out as library law experts who literally wrote the book on sunshine laws that the Illinois Municipal League has for sale, and they represent maybe a hundred or more library clients across the state.  They even admit on their own web site that OMA must be followed.

The point is, there is no way Dennis Walsh and KTJ are not intimately aware of matters relating to sunshine laws and municipal compliance therewith.  There is no way the library’s 3 March 2014 response written by Dennis Walsh and KTJ was not specifically drafted to attempt to obfuscate the illegality and turn the focus to Fox and DuJan and make them the issue.  The library’s non substantive response from such a leading law firm that actually wrote the book on sunshine laws and represents a hundred or so library clients displays a complete and total disregard for the law and disrespect for the process of undergoing OMA investigations.  Worse, it evidences that the library intends to continue to carry on with the illegality.  Worse still, it evidences the library’s law firm will continue to support the library in carrying on with the illegality in its failures to follow library law and sunshine laws, including those currently under investigation.  Worse, the law firm has many, many clients it will advise similarly if it gets away with illegality here.  It is in a position to update its manual sold by the Illinois Municipal League and train at the Illinois Library Association that libraries may effectively pass unpopular and illegal policy by quietly holding meetings during state holidays to which few receive notice and those who do speak up may be immediately silenced, as was done to Megan Fox when she spoke up at the Lincoln’s Birthday holiday meeting that I believe she only learned about that very day from the Chicago Tribune ( ).  Notice no other media source reveals the meeting.  Further, for regularly scheduled meetings there is plenty of press coverage that is in the spirit of the OMA.  A single newspaper on the same day announcing a meeting on a legal holiday during which the IL Attorney General’s office is closed precluding emergent relief is definitely not in the spirit of the OMA.  Not open government.  Not good government.

That’s right, the Lincoln’s Birthday library board meeting was effectively announced to the public the same day it occurred.  Megan Fox has for months been tracking every move the library makes as it suffers no consequences for not reporting child pornography and other crimes that happened as a direct result of unfiltered Internet access that violates Illinois law and library policy, until the library attempted to use the Lincoln’s Birthday meeting to explicitly allow porn despite the law.  No way would Megan Fox have missed this meeting announcement had it been made in a timely fashion.  Further, although she found out the same day, she still attended, and they cut her off when she finally spoke up at the end of the meeting apparently when it was obvious they were not allowing the public to speak.  She tried to speak and they cut her off, shouted her down. You can see this in the video I believe she linked.

And it is my belief there is credible inside information that the pro porn library board members colluded to have the meeting on Lincoln’s Birthday with the express purpose of cutting off Megan Fox and Kevin DuJan’s right under the Open Meetings Act and rushing through the illegal porn policy.  In the video you can even see other board members saying it’s wrong to hold a meeting on a holiday, especially with the regular meeting only a few days away, but they were effectively overruled by the pro porn trustees and, notably, by the library’s attorney.

Given the non substantive nature of the library’s response, we must look elsewhere for what the library and its attorneys might do if the Attorney General does not put a stop to this.  Fortunately, the Chicago Tribune sheds light on this.  It makes it apparent the library, supported by its law firm, will continue on with the illegality unabated: “Trustees Say No — Again — to Filtering Library Computers,” by Dennis Sullivan, Chicago Tribune, 18 March 2014 ( )  

Notice the effect of the illegality and lawlessness already apparent.  For example, the reporter reports that Beth Gierach is a library trustee even though she was “appointed” during the illegal meeting then “re-appointed” at the next meeting.  Her “re-appointment” was “ratified and confirmed,” but something illegal cannot be “ratified and confirmed”; it was illegal in the first place or void ab initio ( ). Yet the media reports it as a fait accompli.  The significance being the “ratification” vote was 3-2, and since Beth Gierach is not yet a library trustee under the law, only by illegal fiat, then the media should at least have reported the “vote” as 2-2, a tie.  And even though the “vote” itself is fatally flawed, at least the media could have presented the public with a somewhat more accurate picture.

From the same story we see, “Walsh, responding in a letter dated Monday, contends the meeting was legal. He had written to Assistant Attorney General Tola Sobitan, arguing these points, there was no problem with the day because Feb. 12 is not a legal holiday, the board gave legal notice prior to the meeting and, the board did deny public comment, but there is no requirement that public comment be allowed during a special meeting.”  So the man who wrote the book on sunshine laws and likely represents a hundred library clients said a legal holiday is not a legal holiday.  Lincoln’s Birthday, no less.  In Illinois, no less.  For someone with his knowledge and experience, he is simply lying.  And the library knows full well Lincoln’s birthday is a legal holiday as that is the very reason the meeting was planned then, the purpose being to suppress public comment, and that is exactly what they did, and even Dennis Walsh admits that.  

And his saying the board gave legal notice is conclusory.  I am certain the Attorney General is investigating this and will conclude otherwise.  Please consider what I said about about the Chicago Tribune being the only paper to announce the meeting, and even then only on the same data as the meeting, on Lincoln’s Birthday.  Contrast that with other meetings where there is complete and legal coverage as intended by the OMA.

As for his claim public comment may be precluded at special meetings, it appears that only applies to closed meetings.  That someone who wrote the book on sunshine laws, teaches an the Illinois Library Association, and advises a hundred clients on sunshine laws could claim cutting off free speech is acceptable is truly unbelievable.  

I am concerned by the article I quoted at the top and by the library’s obfuscation and ad hominem argument that justice will not be done.  Given the experiences of the law firm including its having written the book on sunshine laws that’s sold by the Illinois Municipal League, it is apparent to me there has been a deliberate effort to skirt the law.  The article concerns me because it details that most OMA remedies are merely slaps on the wrist.  And if the library gets a slap on the wrist, the library’s attorney will be free to recommend denying public comment to its many other library-related clients, and worst of all, Orland Park will be left with a library policy that allows computer porn despite the law that precludes porn in libraries and despite the law that defines open meetings.

Turning now to the second KTJ response dated 14 March 2014, the library finally addresses substantive issues.  The points made are truly unbelievable.  Who would believe an Illinois attorney would argue an Illinois state holiday is not a holiday.  Here’s the kicker, the lawyer knowingly and intentionally made false statements designed to mislead the Attorney General specifically and all of Illinois generally.  The smoking gun?  The lawyer’s own book.  That’s right, the lawyer’s own book contradicts what he is saying to the Attorney General to justify why a library may meet without notice on Lincoln’s Birthday to pass a policy that allows illegal porn in the library.  Walsh argues to the Attorney General, “Had the legislature intended to have certain prescribed legal holidays or the holidays found in the Bank Holiday Act apply also to the Open Meetings Act, it could and would have done so as it has in other statutes. ….  Suggesting now that the Orland Park Board of Library Trustees violated the Open Meetings Act when it conducted business on February 12, 2014 is without any statutory support in the Act and ignores the fundamental principles of statutory construction.”  But Walsh writes in his book, and in violation of attorney ethics rules, does not disclose to the Attorney General, “the Bank Holiday Act (205 ILCS 630/17(a)) does set out a list of ‘legal holidays.’ A special meeting on such a legal holiday would not be convenient to the public.”  See more at “Dennis Walsh (Klein, Thorpe & Jenkins) – Contradicts His Own Book…” ( )

And recall Walsh of KTJ now argues, per the 14 March 2014 letter and per the Chicago Tribune, that there is no requirement to allow public comment during a special meeting.  Again, his own book contradicts him.  It reads, “A special meeting on such a legal holiday would not be convenient to the public.”  If there is no requirement to allow public comment at a special meeting, why does his book say a special meeting on a legal holiday would not be convenient to the public?

I also object to the statement that “Ms. Fox and others had already repeatedly and consistently ‘addressed’ those issues (among others)….”  The reason I object is that is a factually false assertion.  “[A]llowing public participation at all of its regular meeting without fail”?  False.  My first Request for Review that was consolidated into the one under review now stated that I was denied the ability to speak, that I was removed from a speakers list, and that the Lincoln’s Birthday meeting approved a policy specifically designed to silence me.  No one heard what I had to say and the author of the Children’s Internet Protection Act called me a “trusted source” on the misinformation libraries use to promote porn despite the law ( ).  I was going to speak on how the American Library Association misled the community at a previous meeting ( ).  The library board violated its own speaker rules to allow the ALA to speak, but it blocked me and passed a policy to block me permanently.  One way ALA misled the community is by saying I was wrong when the Chicago Tribune quoted me as saying no library had ever been sued for blocking porn.  That is true, but ALA said the Camdenton case was about blocking porn.  Actually, no, it was not.  It was about blocking LGBT content, not porn.  The ALA literally made up the false claim about Camdenton even though in the past the very same person said the exact opposite. ( )  Even the library itself produced a document it had from ALA that said Camdenton was about blocking LGBT content.  Remarkably, asserting known false claims is the same technique KTJ/Walsh used to say one thing now when they said something different in the past.  Apparently, the technique of changing things on the fly to fool people is a useful and popular one.  The means justifies the ends.  I am hoping the Attorney General sees this for what it is.  Had I had a chance to speak at the meeting, I could have provided accurate information.  And I would have spoken on other issues not previous raised.  So no, the issues had not been “already repeatedly and consistently ‘addressed.’”

Taken alone, the library’s arguments have been effectively refuted by me or others.  But taken together, the library’s comments lead to the inescapable conclusion that the library knowingly and intentionally violated the law and violated the public trust.  It told the public over the months it would wait to vote on the filtering issue until the board was fully constituted.  It then colluded to, without adequate notice, hold an illegal meeting on a legal holiday where it reconstituted the board, then, without discussion as promised, voted to allow porn in violation of the law, and it did so by cutting off public comment to the point of shouting down Megan Fox when she finally attempted to speak.

And this is a library that supposedly holds free speech and equal access paramount, so much so that it allows illegal porn and does not report child pornography, claiming a First Amendment right to “constitutionally protected materials.”  The library is so zealous to promote porn that is does not reveal that the US Supreme Court ruled while porn may be “constitutionally protected material” outside a public library, libraries have always blocked porn so using Internet filters to do so did not violate First Amendment rights ( ).

In summary, the actions of the library go directly against the OMA law and were designed to stifle free speech and public debate and even public knowledge of actions taken to allow illegal porn.  Open government is good government.  All evidence shows the library intentionally hid its most significant decisions from the public.  Closed government is bad government.  The help of the Attorney General is needed to restore open government as the library has not evidenced any willingness to comply with the OMA nor to correct its past illegal actions.

I respectfully request the Attorney General void the February 12 meeting from the start and necessarily void every action taken at that meeting and all subsequent meetings that “ratified and confirmed” that which was void ab initio.  Actions void ab initio cannot be “ratified and confirmed” or otherwise foisted on the public.  Respectfully speaking, the whole matter needs to start from scratch, I must be allowed to speak, the issue of the unreported child pornography and other sex crimes must be discussed in public as that needs to stop, and the library must be held under the full weight of the powers granted to the Attorney General under the OMA as this matter of the library pushing illegal porn on a legal holiday in violation of the law has got to be one of the most egregious violations of the OMA ever, and in a manner that directly threatens the wellbeing of both library patrons and library employees. I can’t imagine what might be more of a violation.  And it’s a series of violations of different meeting dates, no less.  It is clear to me the violations will continue.

The icing on the cake is the library’s attorney intentionally misleading the Attorney General by, among other things, saying Lincoln’s Birthday is not a legal holiday when his own book he wrote on the law that the Illinois Municipal League sells says essentially the exact opposite.  If ever there was a time to refer an attorney for disciplinary action for any number of reasons, this would be it, especially since this KTJ law firm has many library clients and repeatedly teaches sunshine laws to librarians at the Illinois Library Association.  The harm this law firm may be doing positioned as it is as attorneys for maybe a hundred or more library clients and as trainers for the Illinois Library Association makes me shudder.  The only thing worse is the American Library Association teaching all new library trustees nationwide the opposite of the law so they think libraries must allow Internet porn ( ), but the Attorney General can do nothing about this.  At least KTJ’s teaching the opposite of the law is confined to Illinois.

Dan Kleinman, Library Watchdog
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On Twitter:  @HillBuzz @ILAttyGeneral @IntolerantFox @OIF @OrlandPkLibrary @VillageOrlandPk

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