ILLINOIS POLLUTION CONTROL BOARD
October
27,
1989
SAM DIMAGGIO,
CARL PIACENZA,
)
DANA PIACENZA,
ROBERT NIKOLICH
HOtJSTOUN M.
SADLER, LINDA VUKOVICH,
and WILLIAM
A. WEGNER,
Petitioners,
v.
)
PCB 89—138
SOLID WASTE AGENCY OF NORTHERN
)
COOK COUNTY; CITY OF ROLLING
MEADOWS, A MUNICIPAL CORPORATION,
AND
CITY OF ROLLING MEADOWS CITY
COUNCIL, A BODY POLITIC AND
CORPORATE,
Co—Respondents.
ORDER OF THE BOARD (by
B. Forcade):
This matter comes before the Board upon an October
24,
1989
Emergency Motion to Review Decision of Hearing Officer
filed by
Sam DiMaggio, Carl Piacenza, Dana Piacenza,
Robert Nikolich,
Houstoun
M.
Sadler,
Linda Vukovich and William A.
Wegner
(“Petitioners”).
Petitioners move the Board to review the Order
of the Hearing Officer dated October
19,
1989
in which subpoenas
for the deposition of the Mayor and Aldermen of
the City of
Rolling Meadows were quashed.
Petitioners were seeking
information with respect
to ex parte contacts and Open Meetings
Act violations.
Procedural History
This case involves a September
7,
1989 third—party petition
for hearing
to contest
the decision of Rolling Meadows
by which
site location approval was granted
for
a regional pollution
control facility to co—respondent,
Solid Waste Agency of
Northern
Cook County
(“SWANCC’).
Petitioners challenge the fundamental
fairness and the conduct of
the hearing process.
On October
5,
1989 subpoenas were
issued to and notice of
depositions served on the following members of the City Council
of Rolling Meadows, Thomas
F. Menzel, William
L.
Ball, Robert
D.
Taylor and William D. Ahrens,
its mayor.
Depositions were
to
be
held October
19,
1989 and all writings which did not become part
of
the record relating to Rolling Meadows’ decision of August
8,
1989 were subpoenaed.
On October
10,
1989,
a pre—hearing
conference was held.
On October
10,
1989,
the City of Rolling
1O4-5f~7
—2—
Meadows and the City of Rolling Meadows City Council filed a
motion
to quash notice of deposition and subpoena duces
tecum.
On October
16, Petitioners filed a response to the motion to
quash.
On October
18,
1989, Rolling Meadows and its city council
filed their reply to petitioners response
to motion to quash.
On
October
23,
the hearing officer entered
an order
to quash
subpoenas directed to the aldermen and mayor, above,
and the
adjunct notice of depositions.
On October
24,
1989,
Petitioners
filed
the subject
emergency motion to review decision
of hearing
officer.
October
25,
1989,
co-respondent,
SWANCC,
filed
their
motion to quash subpoena on the same matters
referenced above.
On October
27,
1989, City of Rolling Meadows and Council
filed a
motion to strike petitioners’
emergency motion to review decision
of
hearing officer.
On October
27,
1989,
SWANCC filed an answer
to emergency motion to review decision of the hearing officer.
Because of the particular
facts of
this case and because
failure
to address
the issue
of
the depositions would be
tantamount
to denial,
(since the hearing
is scheduled for
November
1,
1989),
the Board grants the Petitioners’
motion
to
review the decision of the hearing officer.
Discussion
The motion of the City of Rolling Meadows and the City
Council
to quash
the notice of deposition and subpoena asked
that
the Rolling Meadows officials not be deposed
for several
reasons:
1.
The hearing
before
the Pollution Control
Board should “be based exclusively on
the
record before
the
..
.
governing
body
of
iLhc
nun
i
i
~
(
I~?
.
R~v
.
ci.
l1l~, par.
1040.1(a));
2.
The
record
was
timely
filed
without
objection
by
the
Petitioners
as
to
its
accuracy or completeness;
3.
The mayor
was
not entitled
to vote on the
site location approval and did not
do so;
4.
The
city
council
exercised
its
function
according
to
Ill.
Rev.
Stat.
ch.
1ll~,
par.
1039.2(a)
and
determined
that
the
nine prerecuisite conditions were met and
the record
notes those determinations;
5.
Legisat~vE
action
carrie5
the
~:e-
sumption
of
validity,
without
reviewing
motives;
1’)4--5~S
—3—
6.
Depositions
of the council members should
not
be
taken
without
showing
their
motives were improper; and
7.
This
form
of
discovery
should
not
be
permitted
unless
denial
would
cause
prejudice or injustice to petitioners.
In response, Petitioners argued the following:
1.
In
issues
relating
to
fundamental
fairness,
the
Board
may
look
beyond
the
record;
2.
Petitioners
have
not
waived
their
right
to
raise
the
issue
of
fundamental
fairness
because
they
did
not
become
aware of the alleged unfair
conduct until
after
August
8,
1989,
the
date
of
the
rehearing
on
the
application.
Further,
the alleged
conduct
took place
after
the
record was closed;
3.
The mayor
possesses
information
relevant
to
the
proceedings,
and
in
his capacity
as
a
member
of
SWANCC,
he
has knowledge
of contacts with SWANCC;
4.
Petitioners do not question the council’s
motives
but
are
seeking
to
determine
whether
the
hearing
was
fundamentally
fair
concerning
ex
parte
contacts
and
decisionmaking
based
on
information
outside
the
purview
of
the
general
public;
5.
Case law does not preclude deposing these
public officials;
6.
Improper
motive
need
not
be
established
to justify deposing the council members;
7.
Discovery
by
deposition
of
the
public
officials
need
only
be
relevant;
it
is
not
necessary
to
show
a
special
need,
prejudice or injustice;
and
8.
The
council
members
are
“the
primary
if
not
the
only
source
of
information
relating
to
ex
parte communications
with
SWANCC.
11)4—581
—4—
In reply
to petitioners’
response, Rolling Meadows and
its
city council made several other
arguments:
1.
Petitioners’
own statements
reflect
that
the council
members may
not
be
the
only
source
of
information;
petitioners
did
not
serve
notices
of
deposition
on
any
SWANCC members;
2.
General
principles
of
discovery
and
deposing
members
of
a
legislative
body
must
be
distinguished.
In
E&E
Hauling
(cited
also
by
Petitioners),
the
court
allowed:
limited discovery on
the
issue
whether
the proceedings
at
the
county
board
level
satisfied
statutory
requirements
of
fundamental
fairness.
Emphasis
added.
E&E Hauling,
Inc.
v.
Pollution
Control
Board,
116
Ill.App.3d
586,
451
N.E.2d
555
at
593
(Secant Dist.,
1983).
Furthermore,
the
“limited
discovery”
related
to
judicially
noticeable
matter.
Similarly,
in
Waste
Management
of
Illinois
Inc.
v.
Illinois
Pollution
control
Board,
79
Ill.Dec.
415,
463
~ir.2d
9~t9
(I11.An~.2~.
Dint.
~
tin
discovery
focused
on
a
transcript
at
a
meeting
not
the depositions
of municipal
legislators.
3.
In
conflict with petitioners denying
that
it
questions
motives,
the
allegations
that the city acted improperly
throughout
the hearing
suggest
that
petitioners
do
question
the
council
members
motives,
which
the Board has
found
not within
the
proper
scope of
its
review;
4.
The
subpoenas
should
be
quashed
because
petitioners
have
not
articulated
any
reas:r.
why
ti~n depositions
would
resut
in
rn1e~ant
nfformat~
n.
The
Board
deniec
a
motion
to
iss~.e subpoenas
for
depositions
of
county
board
members
in
The
Village
cf
Hanover
Park
v.
County
11)4
~
—5—
Board
of
DuPage,
et
al.,
PCB
82-69,
noting:
This
ruling
does
not
foreclose
direction
to
the
hearing
officer
of motions for issuance
of
subpoena
which
seek,
for
articulated
reasons,
to
compel
testimony
on
relevant
subjects.
(Emphasis added.)
In both
the petition
and the response to
motion
to
quash,
Petitioners
did
not
establish
any
factual
basis
to
substan-
tiate
the
allegation
of
ex
parte
con-
tacts.
Nor
were
affidavits
offered
nor
depositions
of
SWANCC
officials
used
to
establish a reason for the deposition;
5.
Petitioners
have
waived
the
right
to
object
to the fundamental fairness of the
hearing,
since
they
could
have
objected
before the ordinance was passed; and
6.
Since
the
mayor
did
not
vote,
no
prejudice can result;
his testimony would
be
irrelevant.
Also,
the
mayor
has
provided
an
affidavit
that
he
is
not
a
member
of
SWANCC,
but
is
the
city’s
delegate to SWANCC.
In reviewing the order
of
the hearing officer,
(1)
the
absence of
a factual basis
to support
the proposition that
deposing the city officials might lead to discovery of facts
showing fundamental unfairness
of
the hearing process and
(2)
the
deference which must
be accorded to administrative decisionmaking
were clearly key considerations
in granting the motion to quash.
The hearing officer acknowledged that petitioners’ position
is that the action taken by
the
city council was fundamentally
unfair because members
“entertained evidence outside the hearing
process
through ex parte communication
.
..
and negotiated the
conditional approval
in private without input from or
notification to the public...”
However,
the hearing officer
found no facts
in the record regarding
“who participated
in these
alleged ex parte meetings, and when and where they were held,
or
what
perhaps was said...”
The hearing officer
noted that
(1)
no
affidavits were attached to the petition;
(2)
no response was
made
to any specifics when the pre—hearing conference was held;
and
(3)
in petitioners’
response
to the motion
to quash,
no
answer was made amplifying what these contacts may have been.
1O4~-591
—6—
The hearing officer agreed with petitioners that limitedk
discovery,
beyond the record developed at
the county board,
may
be appropriate to determine that the governing body satisfied the
statutory requirement
of fundamental fairness.
(E&E Hauling,
Inc.
v.
PCB,
116 Ill.ApP.3d
587,
451 N.E.2d 566
(Second Dist.,
1983).
The Buard fully adheres
to the principles enunciated in E&E
Hauling,
below, directing the Board to look beyond
the record,
where appropriate,
in matters concerning
fundamental fairness.
Petitioner has not provided the Board with an adequate basis
for
doing so
in this case.
“The Environmental Protection Act by its terms
requires
that
a
hearing
on
a
petition
for
review
be
‘based
exclusively
on
the
record
before
the county...’
(Ill.
Rev.
Stat.,
1981,
ch.
lll~, par.
1040.1(a),
but
the
spirit
and
purpose
of
an
enactment will prevail over
the
literal
language
if
necessary
to
avoid
an
unjust
or
absurd
result.
(Citation
omit-
ted.)
To
adopt
petitioners’
argument
could
visit
unjust
results
on
parties
actually
victimized
by
unfair
or
improper
procedures
not
of
record.
To
shielf
off—record
con-
siderations
from
judicial
review
would
frustrate
the
purposes
of
review
since
the
statute
directs
the
PCB
to
consider
the
fundamental
fairness
of
the procedures
at
the
County
Board
level.
E&E
Hauling,
Inc.
v.
Pollution
Control
Board,
116
Ill.App.3d
587,
594.”
(Emphasis added.)
However,
petitioners
failed
to
provide
sufficient
facts
to
warrant
taking
the
depositions
of
the city council members.
In paragraph 7D of their emergency motion,
Petitioners state
that the city council initially voted
to deny site location
approval and then,
within two weeks and without further meetings,
unanimously approved the application.
Petitioner believes this
strongly suggests ex parte contacts.
Secondly, Petitioners quote
councilman Menzel’s August
8,
1989 statement concerning
phonecalls between himself and Councilman Bob Taylor and
Councilman William Ball.
The quoted passage makes reference
to
the “internal process
that went through” and makes
no comment
as
to parties outside
the city council.
The Board cannot conclude
that these
facts lead to the conclusion that
ex parte contacts
may have occurred.
The Thove mentioned quote
is
the only
“fact”
alleced,
but
it mere iy inoicates that
three city council members
talked and then reac~edanc~.herconclusion.
Despite at
least:
three different opoortunitins noted
by the hearing officer,
the
Petitioners did not present
facts substantiating the requested
depositions.
1fl4--51)2
—7—
Furthermore, the Board cannot agree with Petitioners
contention
in paragraph 7B of
their emergency motion that “the
very nature of the incidents in question dictate that the
detailed information
required by the hearing officer would not be
available until
the depositions are taken.”
The information
found deficient by the hearing officer was
“who
participated
in
these alleged ex parte meetings,
and when and where they were
held,
or what perhaps was said.”
(Emphasis added.)
If there was
any basis to the claim of
ex parte communication or meetings
in
violation of the Open Meetings Act, Petitioners should have
presented that basic information or
they could have developed
it
through the less invasive alternative of
interrogatories.
The
Board finds the failure
to propound such interrogatories
significant.
In SWANCC’s motion to quash filed October
25,
1989, SWANCC
reiterated
the occasions where Petitioners did not offer any
facts
to support
their allegations.
SWANCC also added that
in
interrogatories
it posed
to Petitioners concerning alleged ex
narte communication or closed meetings.
Petitioners stated:
Specific
information
not
presently
avail-
able.
Investigation continues.
Statement
by
Councilman
Ball
on
August
9th
to
Janet
DiMaggio
that
they
had
the
votes
arranged
before the reconsideration votes were taken on
August
8,
1989.
Councilman Manzel’s statement
on August
8,
1989,
that he resented the “back-
door
politics”
regarding
the
reconsideration
vote.
The
fact that vote
to deny
site loca-
tion
approval
had
changed
between
July
25,
1989
and August
8,
1989,
without
any further
public
hearing
or
discussion
in
the
interim.
Investigation continues.
Answer
to Interrog-
atory Nos.
5 and
6.
and that:
Rolling
Meadows
should
have
retained
inde-
pendent counsel
to conduct hearing,
especially
in
light of fact that Rolling Meadows was both
applicant and the
hearing
body.
Investigation
continues.
Answer
to Interrogatory No.
4
Without adequate facts warranting an inference that
fundamental unfairness may have occurred
in the hearing process,
the Board will not unnecessarily invade the proper
realm of
the
city councilmen and search beyond the record.
The Illinois
Supreme Court,
in E&E Haulinq,
held that “public officials should
be considered
to act without bias.”
(E&E Hauling supra.)
Similarly,
the Board must presume
that the city council acted
without ex parte contacts
in the absence of Petitioners’
showing
1fl4~5fl3
—8—
some facts
to the contrary.
Absent such justification, the only
basis
for reversing
the hearing officer
and deposing these
members of
the city council would be to allow a probe of
the
mental processes of the city council members.
This the Board
will not do.
The Supreme Court of the United States clearly indicated
that administrative officials are
to be accorded the same
deference as judicial officers in being free from interferences
with their
thought processes.
In U.S.
v. Morgan,
313 U.S.
409
(1941)
Morgan
IV,
the Supreme Court looked at whether the
decisionmaking process
of the Secretary of Agriculture should be
examined.
Mr. Justice Frankfurter stated the following,
in
finding that the mind of the decisionmaker should not be invaded:
But
the
short
of
the
business
is
that
the
Secretary should
never
have been subjected
to
this
examination.
The proceeding
before
the
Secretary
“has
a quality resembling
that of
a
judicial
proceeding.”
Morgan
v.
United
States,
298
U.S.
468,
480.
Such
an
examination of
a judge would be destructive of
judicial
responsibility.
We
have
explicitly
held in
this very litigation that
“it was not
the function
of
the
court
to probe
the mental
processes
of
the
Secretary.”
304
U.S.
1,
18.
Just
as
a
judge
cannot
be
subjected
to
such
a
scrutiny,
compare
Fayerweather
v.
Hitch,
15 U.S.
276,
306—7,
so the integrity of
the
administrative
process
must
be
equally
respected.
See
Chicago,
B.
&
Q.
Ry.
Co.
V.
Babcock,
204
U.S.
585,
593.
It
will
bear
inn
Thot
a?.Lnou~h
ti~::
ncLun~s
L rative
process
has
had
a
different
development
and
pursues
somewhat different
ways
from those
of
courts,
they
are
to
be
deemed
collaborative
instrumentalities
of
justice
and
the
appropriate
independence
of
each
should
be
respected
by
the
other.
United
States
v.
Morgan,
307 U.S.
183,
191.
The Board
finds
that
in reasonable deference
to the city
council,
their depositions should not be required,
absent some
greater showing
of
a
factual basis for alleged ex parte contacts.
The Board notes
that contrary to the suggestion of Rolling
Meadows
in their October
10,
1989 motion
to quash
(p.
3,
par.
3D)
,
the decision
to g:ant or deny SB—l72 siting approval has
clearly been heio
to be
an adjudicative function and not a
legislative action.
E&E
Hauling,
Inc.
er
al.
v.
PCB and
The
Village
off Hanover
Park,
116 Ill.App.3d
587,
451 N.E.2d 566
(Second Dist.,
1983);
and
Town
of Ottawa
v.
IPCB,
129 Ill.App.3d
121,
472 N.E.2d 150
(Third Dist.,
1984).
11)
!~—
5~4
—9—
Today’s decision only addresses the issue of depositions
of
the decisionmakers below.
Nothing
in this Order should be
construed as limiting the Petitioners’
right
to develop
information on ex parte contacts through testimony
off other
individluals
or by
other means.
The Order
of the Hearing Officer
is hereby affirmed.
IT
IS SO ORDERED
Board Members J.D. Dumelle and H.
Flemal dissented and Board
Member
J. Theodore Meyer concurred.
I,
Dorothy M.
Gunn,
Clerk of
the Illinois Pollution Control
Board,
hereby certify that the above Order was adopted on
the
~
day of
~‘-~
~
,
1989,
by
a vote
of
____
~
~
~
Dorothy M. ~unn,
Clerk
Illinois P~’llutionControl Board
104
595