Ryan Field: How the City Negotiated Against Itself

City Manager, Lawyers, and Mayors Office knew of litigation, withheld it from the Council and NU-City Committee

This is kind of an arcane story, but stick with me here - it gets interesting!

Roll back the clock to 2000. Northwestern sued the City of Evanston, you can read the original complaint. The litigation is very interesting by itself, but what you need to know is the following:

• The lawsuit was related to the City creating the Northeast Evanston Historic District in 1999. Here is a map of the District.

• There was a conclusion in 2004, in the form of a federal consent decree. You can read the decree here.

NU-City Committee

One of the outcomes of the decree was the creation of the University/City Committee. I will refer to this as the NU-City Committee for the rest of the story. The decree lays out the organization of the committee and describes the objective (bold is mine);

The Committee shall meet on a regular basis, or as needed, in meetings open to the public, to discuss and make good faith efforts to resolve issues relating to: (i) the University's proposed demolition of existing structures on, and/or new construction plans for, the University's current T1 and T2 District properties and the University's current U1 District properties; (ii) other issues relating to planning, land use, building and zoning pertaining to the University's current T1 and T2 District properties and the University's current Ul District properties.

So, the committee’s purview consists of Northwestern properties zoned T1, T2, or U1. You can view the zones in the City Code. Here’s a map where I’ve highlighted the zones in question. I’ve also highlighted the approximate boundaries of the Northeast Evanston Historic District in yellow.

The committee started meeting in 2004 and continues to meet to the present day. In fact, some of the original committee members from 2004 remain on the committee. You can view their meeting agendas and minutes, which are public records.

The Stadium 🏟️

In September 2022, Northwestern announced their plans to build a new stadium on the site of the old one.

If you go back and look at that map, you may note that there is a lonely T1 zone way out by the stadium, the parking lot adjacent to Ryan Field. This lot is outside of the Northeast Evanston Historic District, but in theory (and in law, as we will see) still within the terms of the Consent Decree. The committee meets on 10/27/2022 and begins discussing the project.

By April 2023, there is some disagreement from Northwestern that this lot is within the purview of the NU-City committee. On April 7, 2023 the Northwestern lawyers sent Evanston’s Attorney, Nick Cummings, a letter on the subject, suggesting that they believe the NU-City committee should not discuss the stadium since it is not located within the Northeast Evanston Historic District;

It has come to my attention that in the last Committee meeting, the issue of the University’s Ryan Field stadium construction project was raised.

…

The stadium is outside the scope of Consent Decree and, therefore, discussion of the stadium construction is outside the scope of the Committee meetings. The stadium project does not contemplate any changes to properties within the boundaries of the historic district that are covered by the Consent Decree.

The NU-City committee responded on 4/9/2023 by sending an email to Nick Cummings, opposing the claim, arguing that the plain language of the consent decree includes all T1 properties, regardless of inclusion in the Northeast Evanston Historic District;

With respect to the scope of the Committee’s purview, it is axiomatic that the interpretation of a binding agreement such as the Consent Decree begins—and absent genuine ambiguity, ends—with the language of that agreement. In this instance, the Consent Decree unambiguously extends the Committee’s purview to “issues relating to: (i) the University's proposed demolition of existing structures on,and/or new construction plans for, the University's current T1 and T2 District properties ...; and (ii) other issues relating to planning, land use, building and zoning pertaining to the University's current T1 and T2 District properties....”

On 4/12/2023, the committee held a meeting, discussing the stadium. In this meeting, the consent decree comes up and Northwestern’s representative Dave Davis commented, referring to the discussion with Cummings (Youtube link);

The two parties [Northwestern, Cummings] met privately to discuss a way through this particular disagreement and asked that this meeting be postponed so we could have that discussion. That discussion is scheduled for Wednesday of next week. You know, Alderperson Kelly and perhaps the other committee members decided to go ahead with this this particular meeting in spite of the fact that the two parties initially agree with what the consent decree says.

We attended this meeting in order to really to take the high road. You scheduled the meeting we felt that it was important that Northwestern be here but we're only going to comment on the things that we believe are consistent with the consent decree and the opinion of the two other lawyers who reviewed the review the agreement so hopefully we'll have that meeting we'll be able to discuss a good way forward and use this as a positive venue.

Knowing the meeting between Cummings and Northwestern was scheduled for April 19th, a citizen on the committee (and lawyer) emailed, asking to be part of these discussions.

Mr. Cummings,

At Wednesday evening’s meeting of the NU/City Committee, the University’s representatives responded to our thoughts about the Committee’s proper role as a forum for discussions regarding the University’s planning and use of the T1 stadium property by telling us that “the lawyers” plan to meet shortly–perhaps next Wednesday–to discuss that subject. You mentioned similar plans to me on the phone last week. I write to request that you allow me to participate in that discussion.

Cummings denied the request;

Thank you for your offer; however, this meeting has more to do with handling a dispute pursuant to the consent decree rather than a committee meeting.

Alderperson Clare Kelly followed up, asking to cancel the meeting and adding the topic to the agenda in June. Cummings seemed to agree with her. But he then forwarded Alderperson Kelly’s email to the Northwestern attorney saying;

In light of this, I think anyone from NU that serves on the committee should not be in tomorrow's meeting, if we intend to continue with the meeting.

The Northwestern Attorney agrees,

So, would it just be me and you then?

He follows up that another attorney will be there;

And Alex Ruggie, the Deputy City Attorney.

The meeting happens¹ on April 19, 2023. No one from the NU-City committee was present or even notified. As far as the NU-City committee knew, this was going to be discussed at their June meeting.

They finished the work quickly. On 4:23 pm later that afternoon, Cummings emailed Northwestern’s Counsel attaching "Defendant's Motion for Modification of the Consent Decree.docx" and asking about service requirements. He would be filing the modifications to the Consent Decree.

A week later, on April 27, 2023, Northwestern’s attorneys replied to Cummings stating "I have informed my clients [Northwestern] that the City will be filing this motion." So at this point, at least Northwestern leadership was aware of the modifications and the City would be the one to file.

Motion Filed - Mayor’s Office & City Manager Notified 🏛️

On May 1, 2023, Nicholas Cummings files the motion to amend the Decree with the Court. That same day, he sent an email to Luke Stowe [City Manager] and Alison Leipsiger [Mayor’s Office] with the subject "Northwestern/City Committee" stating the motion was filed, and attaching the PDF.

The NU-City committee, including Alderperson Kelly were still in the dark.

A month later, on 5/31/2023 the Court holds a hearing. Cummings and Northwestern’s lawyers are present. The Judge instructs them to come back with more specifics and sets a hearing date in two months, on 7/25/23 at 10:30am.

The Court grants the parties leave to file an oversize brief, if necessary. This brief must address (1) the parties' arguments, with case support, as to whether the consent decree as written is ambiguous, and how the Court should interpret the consent decree, and (2) specific recommendations for any modifications to the Consent Decree the parties request, including proposed language for the scope, agenda, and logistics of the special committee created by the Consent Decree.

Still, as far as I can tell - at this point, nobody on City Counsel or NU-City Committee knew about what was transpiring in the courts. In fact, there was an NU-City Committee meeting on 6/14/2023 - right in the middle of all this, Northwestern didn’t attend the meeting.

A few weeks later, on 6/29/2023, Northwestern and the City file a motion with the Court, following up on the changes requested in the earlier court hearing. It concludes;

The Parties agree areas outside of the Local Historic District were not intended to be part of the Consent Decree, specifically Paragraph 3, but need the Court’s assistance to document that understanding. Accordingly, the Parties ask this Court to amend the Decree to clarify the jurisdiction of the committee to be the University’s T1 Districts located in the Local Historic District, or any other relief this Court deems appropriate. A draft order is attached as Exhibit E for the Court’s consideration.

These changes were to be heard at the scheduled hearing on 7/25/2023. The filing included an Exhibit with proposed changes to the Decree, limiting the committee’s authority to just the historic district.

Still, at this point, there’s no evidence that the City Council or anyone on the NU-City Committee was aware of what was occurring in the courts. However, the City Manager and the Mayor’s Office were notified as far back at 5/1/2023.

Citizen Discovers Filings

A week before the July 25th hearing, on July 19th, an enterprising citizen discovered the filing on the docket and emailed the NU-City committee members;

From: David DeCarlo
Date: Wed, Jul 19, 2023, at 10:17 PM
Subject: NU-City Consent Decree New Court Filings (00-cv-7903)

Council Member Kelly and Committee Members Johnson and Schoenfeld,

I hope this email finds you all well. I wanted to bring to your attention, in case you weren’t aware already, that Corporation Counsel Cummings filed a motion on May 1, 2023, to amend the consent decree to make it clear that it applies only to the Local Historic District, and not the T1 area adjacent to Ryan Field—thereby adopting Northwestern’s position on the limited purview of the committee.

I’m attaching the motion as well as a joint brief filed at the Court’s request by the City and Northwestern. I’m also attaching the excerpt of the FOIA response where I learned of this troubling development this evening.

Sincerely,
David DeCarlo
President
Most Livable City Association

The committee was unaware and responded immediately. NU-City Committee members filed a Motion to Intervene on 7/24/2023, the day before the 7/25/2023 hearing. The next day, in the hearing, the case was thrown out;

The Court finds that the plain language in Paragraph 3 of the Consent Decree does not restrict the Committee's discussion to properties within the Local Historic District. Based on the limited record before the Court, including the supplemental brief requested by the Court, there is insufficient evidence of any clerical mistake, oversight, or omission per Fed. R. Civ. P. 60(a) to support the insertion of the proposed language into Paragraph 3 of the Consent Decree, which would restrict public discussion of issues before the Committee.

That was the end of the line for the motion, and also apparently Cummings’ career in Evanston - he resigned on the same day, an hour before the hearing. It’s unclear if the two are related.

Filings Hidden from the Public & Committee 🤫

Cummings didn’t reply to emails for the story. However, the Evanston Roundtable covered this story and got a statement from Cummings which confirms he didn’t tell anyone about the case;

In a statement he sent to the RoundTable on Monday, Cummings said he did not talk to Kelly or the rest of the City Council about the court filings because “the determination on whether to file a motion consistent with the court’s order was not something the law department determined needed to be approved by the City Council.”

Cummings also said that “the purpose of the motion was not to remove the T1 District adjacent to Ryan Field from the NU-City Committee’s purview,” but rather to seek guidance from the court on Northwestern’s stance that the stadium parking lot should not count as part of the committee’s jurisdiction.

I reached out to Mayor Biss and the City for this story and they gave me the following comment, which aligns with Cummings’ explanation, that they were seeking “clarification”

The NU-CIty Committee members could not agree on the committee's scope, resulting in confusion and the inability to produce a mutually agreed-upon meeting agenda. Former Corporation Counsel Cummings recommended filing the motion as Corporation Counsel for the City. The recommendation was made to the City Manager’s Office in an effort to seek clarification from the courts. The City was seeking clarification on whether the property was included within the consent decree - not to have it removed. It is not common practice for city staff to notify a committee of motion filing.

This defense is absurd.

The motion was very clearly meant to remove the T1 district from the committee’s purview. That was the whole point! They sought to amend the language of what is included in the Consent Decree to exclude everything outside of the Historic District (ie the Stadium). They weren’t seeking clarity from the courts, they wrote the proposed changes and submitted it with Northwestern on 6/29/2023!

Even the document that Cummings shared on 5/1/2023 was literally titled “Defendant's Motion for Modification of the Consent Decree.docx” They were very clearly seeking to modify the consent decree, not just obtain clarification.

There is absolutely no evidence in the filings (5/1, 6/29) or emails that they were seeking clarification from the courts.

In fact, the evidence strongly suggests the City Attorney, working with Northwestern in secret, sought to remove the stadium from the committee. Again, you don’t have to believe me, you can read their joint filing from 6/29/2023 or all the evidence above.

So Many Questions ❓

This leaves so many baffling questions:

• Why would the City file a motion against the a City Committee’s best interests? The original language includes more properties in the purview of the City’s committee. There’s no upside to the City in removing properties from the committee. They gave away leverage for free.

• Why didn’t Mayor Biss, the City Manager or the Legal Department or literally anyone notify the committee or the City Council? My understanding is that this didn’t even come up in closed session meetings of the Council. Shouldn’t the legal department make the City Council aware of litigation with Northwestern? I understand they don’t have an obligation to, but this is pretty important stuff to the Council!

Let me know what you think in the comments.

1. This is very Hamilton-esque: