When it comes to good-government tools, the Freedom of Information Act has always been the sharpest, flashiest one in the kit.
Reporters and the public use FOIA to obtain records that help uncover corruption, waste and fraud. Records obtained using FOIA provide proof of government failings ranging from shocking police misconduct to billions wasted on construction projects.
The Open Meetings Act is the quieter, more subtle legislative cousin to FOIA. But that hardly means it’s without power. In fact, we might consider it the strong, silent type: typically low-key, all business, but the public’s powerful help in times of need.
Given that pedigree, it’s unexpected and curious to see OMA turn up as the key tool Mayor Brandon Johnson is brandishing in his effort to nullify the Chicago Housing Authority’s election of a new CEO. Johnson is seeking to exercise old-style political clout and place his crony Walter Burnett Jr., a former alderman, in the job instead.
This is a power struggle on a higher order than just a CHA board that has rejected Johnson’s handpicked successor. It comes against a backdrop of resistance from other sister-agency boards and the City Council, plus high turnover in Johnson’s administration, so a loss here would further cement a growing view of Johnson as a mayor with few allies and waning influence.
Evidently, Johnson has decided that a challenge to the CHA board’s appointment of Keith Pettigrew — the head of Washington, D.C.’s public housing agency — as the CHA’s next chief executive is his best bet to retain control over the CHA and score a political win.
And because he has few other tools of influence, a challenge based on the Open Meetings Act is the best he can do.
A group of public housing advocates, with Johnson’s vocal support, decided to go to court this week with a lawsuit aimed at invalidating Pettigrew’s appointment. They claim the CHA board failed to comply with the state’s Open Meeting Act.
In Illinois, OMA requires a public body to provide 48 hours of notice prior to any meeting in which half of a quorum of members participate. Notice must include the time, place and subject matter of the meeting. The housing rights groups are claiming the CHA board failed to meet these requirements: While the agenda was posted on time, its vague reference only to personnel failed to inform the public of the consequential move at hand.
Johnson has made that assertion himself, though he is not party to the lawsuit. Promptly after the CHA vote in mid-March, he underscored his pique over the CHA board’s action by moving to replace its chair, Matthew Brewer, and in an official statement Johnson accused Brewer of unethical conduct, in addition to alleged with OMA noncompliance.
OMA, a soft-power tool if ever there was one, can be surprisingly strong in the right circumstances. My organization, the Better Government Association, filed an OMA lawsuit after then-Mayor Lori Lightfoot held what she later described as “informational” Zoom meetings of the full City Council without public notice or participation. This came at the height of the COVID-19 pandemic and disturbances following the murder of George Floyd by a Minneapolis police officer. Lightfoot at first denied breaking the law — then promptly committed not to do so again.
In 2023, Johnson sought to cut off rancorous public demonstrations at City Council meetings by banishing uninvited visitors to the upstairs gallery, behind plate glass. A letter BGA sent to Johnson, delineating his OMA violations, prompted him to reverse course.
Against that backdrop, it’s bittersweet to see Johnson invoking OMA as a clout tool in his unrelenting effort to place Burnett in the CEO’s role at the CHA.
Never mind that Burnett has never run anything close to the CHA’s $1.4 billion budget serving some 135,000 public housing residents. Never mind that Burnett is currently not legally eligible to serve, due to the conflicts created by his ownership of rental units where CHA tenants live —as the Chicago Tribune Editorial Board noted in its argument asserting Burnett’s general unsuitability for the post.
The housing advocates’ lawsuit, which Johnson exhorted, may in fact lack legal merit. After all, the CHA board did provide 48 hours’ notice of its meeting, and OMA is vague on just how much information is required. Whether the intentionally vague wording violated OMA will be for a court to decide. That’s what courts are for.
Regardless of where the courts do land, this much is clear: The OMA law may need repair.
Clearly, vague advance notice fails to meet the spirit of the law, and an OMA revision could specifically ensure that government bodies give the public the advance information needed to participate meaningfully in the debate and actions they take — from the deliberation of city councils to the election of sister-agency CEOs.
And if the CHA board did violate OMA in electing Pettigrew, does this mean the appointment is invalidated? Johnson says so, but the law’s language could be clearer.
Finally, the penalties written into OMA are not strong enough to disincentivize violations. Fines for OMA violations cannot exceed $1,000. And while a 30-day jail sentence is possible in cases of criminal negligence, no one ever has gone to jail, based on the collective memory of lawyers I spoke with and the best efforts of a powerful search engine.
In response to the introduction of remote and hybrid meetings during the COVID-19 pandemic, OMA was updated to ensure public participation. But additional steps could be taken to ensure voters have access to government officials, even if they are not in the same physical space.
FOIA is constantly updated. In fact, the BGA policy team spends considerable effort each legislative session thwarting efforts to erode our rights to public records.
The lower-profile OMA does not receive such scrutiny. Perhaps Johnson’s effort to wield OMA as a political saber could serve as a signal that it’s time to review and strengthen our open meetings law, too.
David Greising is president of the Better Government Association.
Submit a letter, of no more than 400 words, to the editor here or email letters@chicagotribune.com.
