November 22, 2011 · 1 Comments
The very Constitution our States Attorney took an oath to uphold!
If you missed that here it is:
Will Accountability ever happen in Edgar County?
Section 1. General Provisions
(a) Public funds, property or credit shall be used only for public purposes.
(b) The State, units of local government and school districts shall incur obligations for payment or make payments from public funds only as authorized by law or ordinance.
(c) Reports and records of the obligation, receipt and use of public funds of the State, units of local government and school districts are public records available for inspection by the public according to law.
Use of Public Funds, property or credit SHALL be used ONLY for public purposes!
We have PROOF in hand obtained through Freedom of Information request that a county employee has been using public funds for PERSONAL purposes! That’s right! A county employee has spent thousands on credit and it appears no one within our legal system seems to care as of yet because even after being informed, the action continued. Now let’s not forget, Chandra Smith was charged criminally for theft from use of a credit card, yet the person we have uncovered walks free with zero accountability.
We think after you review this report you will be angered enough that you will pick up the phone and demand justice in our county! Equal Justice!
The report below, link provided, is a case precedent established and upheld by the Illinois Supreme Court. The information we have on this county employee far surpasses both the dollar figure and the number of times the action was committed!
The Illinois Supreme Court recently affirmed the conviction of the former mayor of Pekin, Illinois. He was convicted of three counts of official misconduct based upon his use of the city credit card to obtain cash advances for gambling purposes. While the specific fact pattern in this is unique, the legal effects of the case are worth learning. This case could have a reverberating impact on the way that municipal officials in the State deal with public money and credit cards.
The Illinois Supreme Court determined that, when it comes to spending public money or credit, it can be a felony to violate the provisions of the Illinois Constitution. Therefore, local public officials and employees should be extremely careful when the public revenues are involved in any manner.
In the case of People v. Howard, a mayor was convicted of official misconduct for using the city’s credit card for personal reasons—despite the fact that he paid those credit card bills with his own assets when they became due.
The city council of Pekin had obtained a credit card, and the city council adopted a resolution authorizing the heads of city departments to use the city’s card to confirm hotel reservations, pay in advance for training sessions, order educational materials, and pay expenses while engaged in city business. After his election in 2004, the mayor became an authorized user of the city’s card.
On three separate occasions in 2004, the defendant used the City’s card to obtain more than $1,400 in cash advances. He used these advances to play video poker at the Par-A-Dice Casino inPeoria,Illinois. The mayor used the city’s card only after he had exhausted the funds that were available to him through his personal debit and credit cards. While the City ofPekin was the sole obligor with respect to the city’s card, the mayor paid the bills from his own assets when they came due.
Because of his handling of the city’s credit card, the mayor was indicted on three counts of official misconduct. The official misconduct statute states that a public officer or employee commits misconduct when, in his or her official capacity, he or she commits any of the following acts:
(a) Intentionally or recklessly fails to perform any mandatory duty as required by law; or
(b) Knowingly performs an act which he knows he is forbidden by law to perform; or
(c) With intent to obtain a personal advantage for himself or another, he performs an act in excess of his lawful authority; or
(d) Solicits or knowingly accepts for the performance of any act a fee or reward which he knows is not authorized by law.
A public officer or employee convicted of violating the statute forfeits his office or employment and commits a Class 3 felony.
A person cannot be convicted under this statute unless the State can show that he or she violated an identifiable statute, rule, regulation, or tenet of a professional code and can demonstrate how the defendant exceeded his or her lawful authority.
In the Howard case, the mayor was accused of exceeding his lawful authority because he violated the public funds clause of the Illinois Constitution. That clause states that “public funds, property or credit shall be used only for public purposes.” The mayor used the city’s credit to receive cash for his personal gambling purposes.
The mayor argued that he could not be convicted of official misconduct because a violation of a provision of the Illinois Constitution cannot serve as a predicate unlawful act for that offense. According to the mayor, the Constitution is not a “statute, rule, regulation, or tenet of a professional code” for the purposes of the official misconduct statute, and, thus, his conduct, while contrary to the Illinois Constitution, did not constitute “an act in excess of his lawful authority” under the official misconduct statute.
The Illinois Supreme Court disagreed, finding that the Constitution can serve as a predicate unlawful act for the offense of official misconduct. The Court noted that the Illinois Constitution is the supreme law of Illinois, and, as such, every citizen is bound to obey it, and every court is bound to enforce its provisions. The provision of the Criminal Code providing that “no conduct constitutes an offense unless it is described as an offense in this Code or in another statute,” did not alter the Court’s analysis.
The mayor also claimed that the city never lost any money because he paid the credit card bills with his private funds. He further argued that to allow a conviction for such a minor infraction would encourage overzealous prosecution. The Court disagreed with these arguments as well. The Court refused to read a de minimis exception into the plain language of the statute because that would be a matter best resolved by the Legislature.
The Court did, however, warn against the danger of overzealous prosecution, and it suggested that the General Assembly review the official misconduct statute and decide whether a de minimis exception should be included.
Therefore, the Illinois Supreme Court held that the mayor’s indictment for official misconduct for using the city’s credit card for personal use, even though he reimbursed the city, was sufficient because a violation of the Illinois Constitution can serve as a predicate unlawful act for purposes of the official misconduct statute.
What does this case mean for local officials? It means that, when using public money or credit, officials should be exceedingly diligent to “dot their i’s and cross their t’s”. Even minor infractions can lead to felony prosecutions with possible convictions.
There is probably not a widespread use of municipal credit cards to fund personal gambling. But there are other uses of the credit cards that can snare the unwary.
For example, if an official is using the credit card to reserve a hotel room for a conference and he or she also decides to book a double occupancy so that his or her spouse can attend, then that extra amount for the double occupancy of the hotel room may not be considered a public purpose. This could be true even if the official reimbursed the municipality for the extra cost of the double occupancy. Like in the Howard case, merely dedicating any public credit toward a nonpublic expense triggers the official misconduct statute—regardless of who ultimately pays the bill. Whether any prosecutor would bring a charge is the real concern, and one in which the Supreme Court warned about.
Municipal officials are often faced with situations where an expense could encompass both public and nonpublic purposes. When faced with this situation, it is a common practice of many officials to use the credit card to pay the entire expense and then reimburse the municipality for any part of that expense that was not a public use. If, however, there is any question as to whether an expense is a public purpose, the best practice is for the official to pay the expense out of his or her pocket and then seek reimbursement from the municipality for the portion of the expense that involved a public purpose. Following this practice will help avoid the unpleasant effects of a felony indictment.
So now we have to look at our evidence. Beginning in 2006 and continuing through at least May of 2011 we have at least 34 events of public funds being used for non-public matters and the dollar figure exceeds $3000.00, which is twice what the mayor faced in the above case. In fact, it appears Edgar County is being used as this person’s personal line of credit on pretty much a monthly basis!
What is interesting in our case is the fact that not only did the action happen at least 31 more times than the referenced case precedent upheld by the Illinois Supreme Court, but the dollar figure was more than double. Couple that with the fact the Mayor did pay his portion back immediately we find that in our case, although the money was paid back, there were months were late charges were applied because full payment on the account was not made. Regardless of paying it back, it’s a class 3 felony to use public funds for non-public purposes!
So right here in Edgar County we have a public employee who has clearly violated the Illinois State Constitution and no one is holding this person accountable. I won’t speculate why but I do know that if we continue to refuse to enforce the laws on the books we are destined for much worse times in our society in my opinion.
Sadly, I believe that not only is this person violating the official misconduct statute regarding the use of public funds but also in regards to reports and records pertaining to the obligations of public funds, (Article III, section C).
This same person has spent thousands of dollars without any receipts and to date no one sees a problem with that?
I spent a career in the Air Force and have traveled all over the world and the one major difference I witnessed through that time was that the United States is a country with a rule of law, unlike so many places I deployed to. I was rooted in our Constitution from the first day in boot camp and came to a realization more so then than during any time in my public and private schooling that “We The People” is “me”, “you”, “us” and we have an obligation as citizens to hold our elected officials accountable.
We the people must take a stand and demand that our elected officials do the job they were elected to do as well as demand accountability from those in the public sector using our money outside the guidelines of the law!
Enforce the laws on the book!
Class 3 Felony – Fine up to $25,000.00……….EACH COUNT!
Does the Rule of Law apply in Edgar County?
You be the Judge!
Stay Tuned for Part 6
By Kirk Allen