Saturday, February 12, 2005

ICC Chairman Ed Hurley's Insanity Defense

Taking on Blagojevich, Berkowitz and Madigan: An ambitious hat trick for Illinois Commerce Commission ("ICC") Chairman Hurley.
Did Chairman Edward Hurley suggest “Public Affairs,” host Jeff Berkowitz is insane? And, if so, is he suggesting the same about the Governor and the Attorney General? And yet Chairman Hurley readily concedes if the Peoples Energy execs said at the celebrated, private Peoples Energy/ICC lunch, “Here’s somebody the ICC should hire,” that would be inappropriate [illegal?]. Somewhat hard to reconcile, don’t you think?
The Berkowitz Hurley discussion:

Jeff Berkowitz: Could I just ask you one follow-up on the Open Meetings Act? Isn’t the Open Meetings Act rather strict in that it says any discussion of Governmental entity or Commission business by a sufficient number of commissioners [to trigger the application of the Open Meetings Act], which in this case was two, is inappropriate [illegal] unless it is in an Open [publicly held and posted] meeting.

Illinois Commerce Commission Chairman [Blagojevich appointee] Edward Hurley: I am not going to comment on the strictness of the Open Meetings Act. I am simply going to say that to stretch— to stretch what happened at lunch to a violation of the Open Meetings Act would be INSANE, that’s ridiculous.

Berkowitz: Could you say where, in general, if you and Commissioner [Lula] Ford-- when there are only four board members [commissioners]—if you [two] sit down with somebody like Peoples Energy Company [as they did with People’s executives Jerry Fox, VP for administration and Sammy Fiorella, People’s Manager of State Regulatory Affairs and another Peoples’ employee, Bryant Scott for lunch on January 10, 2005 at Smith & Wollensky], what are the boundaries to what you can and can’t discuss with those individuals—

Chairman Hurley: As I said, as I said, it was a casual conversation and a casual introduction of a young man to Lula and myself [sic], and nothing more.

Berkowitz: So, if somebody did it more formally in terms of saying, here’s somebody we think you should hire, would that be inappropriate?

Hurley: I think that might be, yeah. Okay, excuse me. I-

Berkowitz: Thank you very much.
ICC Chairman Ed Hurley, after he had concluded his formal remarks and the formal question and answer session at his City Club of Chicago lunch presentation on Wednesday, February 10, 2005, answering questions from the media. See the blog entry immediately below this entry for excerpts from that question and answer session and for information regarding the television airing of same.
Who are Edward Hurley and Lula Ford?

Chairman Hurley, a Democrat, graduated from Marquette University and from John Marshall Law School, was a self described “baby lawyer,” in the Attorney General’s office, a hearing officer with the ICC at least for a portion of the 1980s, first appointed to the ICC in 1999 by Republican Governor George Ryan and elevated to Chairman of the ICC by Governor Blagojevich in 2003.

Commissioner Ford, a Democrat, has a Master’s Degree and is working on a Ph. D. She was an educator with the Chicago Public Schools for 34 years and worked for the Board of Education before being appointed by Governor Blagojevich to the ICC in 2003.
Blagojevich, Madigan, Hurley, CUB and ICPR add to the conversation:

Blagojevich spokeswoman Abby Ottenhoff said of the Peoples Energy- Hurley/Ford lunch, “…they [ICC Commissioners Hurley and Ford] should be more mindful of the Open Meetings Act.” [Sun-Times, Jan. 25, 2005, Dave McKinney].

Attorney General Lisa Madigan spokeswoman Melissa Merz said, “…we are reviewing the propriety of the matter [the lunch] on a number of fronts, including possible violations of the Illinois Open Meetings Act and the Illinois Ethics Act.” [Sun-Times, Jan. 24, 2005, Dave McKinney].

Chairman Hurley, apparently by way of a “Diversity,” defense of the propriety of what he did, said the lunch was geared entirely around the possibility of the ICC hiring People’s employee Bryant Scott, an African American, or placing him elsewhere in state government. [Sun-Times, Jan. 24, 2005, Dave McKinney].

Martin Cohen, Citizens Utility Board’s executive director said “…it was simply improper for the People’s executives to be encouraging some of the ICC’s top brass to hire one of the company’s own with the [150 million dollar] refund case pending [against People’s Energy at the ICC]…for senior executives at People’s to place one of their employees with the state by using the commission to do so is unseemly. That alone is inappropriate.”
[Sun-Times, Jan. 24, 2005, Dave McKinney].

“…this seems like an unusual way to do your personnel background checks,” said Cindi Canary, director of the Illinois Campaign for Political Reform. [Sun-Times, Jan. 24, 2005, Dave McKinney].
What do the relevant portions of the Open Meetings Act say?

Would it be INSANE, as ICC Chairman Hurley suggests, to think that the Open Meetings Act could have been violated by the discussion at the lunch gathering of the Peoples Energy Executives, a People’s Energy employee and the two ICC Commissioners?

The Attorney General’s Guide to the Illinois Opening Meetings Act [“AG Guide”] states that the Open Meetings Act applies to gatherings “held for the purpose of discussing public business.” But, “although a gathering may not be ‘held for the purpose of discussing public business’ at the outset, the gathering is subject to conversion to a meeting at any point. Thus, for example, at the point that a dinner party turns to a deliberative discussion of public business upon which the attention of the requisite number of public body members is focused, the gathering becomes a ‘meeting’ for purposes of the act.” AG Guide, at 19

The phrase “discussing public business” refers to an exchange of views and ideas among public body members, on any item germane to the affairs of their public body. It is not directed at casual remarks, but…at discussions that are deliberative in nature… A deliberation in this context is a discussion aimed primarily at reaching a decision on a matter of concern to the public body, regardless of whether the discussion will result in the taking of an action, will set policy or be preliminary to either. The particular discussion need not be aimed at reaching an immediate decision in order to be considered a deliberative discussion of pubic business. AG Guide, at 19.
Analysis and Conclusion, does the Hurley “insanity defense,” work?

In the case at hand, wouldn’t it be reasonable to think, based on what even Chairman Hurley has said publicly about the lunch, that the purpose of the lunch was for the ICC to explore hiring, at some point, the Peoples Energy employee with whom Commissioners Hurley and Ford were meeting. Wouldn’t such a hiring be germane to the affairs of the ICC? Wouldn’t a discussion between ICC commissioners Ford and Hurley at the lunch about possibly hiring the Peoples Energy employee be deliberative in nature? If so, isn’t such a discussion at a private lunch an Open Meetings Act violation? And, of course, this is the case even if Commissioners Ford and Hurley did not intend to have such a discussion before the lunch but proceeded to do so after the lunch began, or at any other time that was not at a public meeting, in compliance with the Open Meetings Act requirements.

Of course, I am not saying an Open Meetings Act violation did occur. I am simply suggesting that contrary to Chairman Hurley’s statement, a person need not be insane to suggest that a violation could have occurred, based on what the public knows about the lunch meeting, including what it knows based on Chairman Hurley's public statements about the event.

It will be interesting to see what Attorney General Lisa Madigan has to say about the January 10 private lunch gathering of People Energy personnel and Illinois Commerce Commission Chairman Hurley and Commissioner Ford. Inquiring minds want to know the results of the AG’s inquiry.
Jeff Berkowitz, Host and Producer of Public Affairs and an Executive Recruiter doing Legal Search, can be reached at