Demand Letter? Not So Fast!

Iroquois County (ECWd)

I am in receipt of a letter threatening legal action from an attorney representing the companies involved in the solar panel purchase by the Ford-Iroquois Public Health department, and the owners, one of which happens to be an employee of the FIPHD.

Letter from Christopher Byron: page 1, page 2

I would like thank Mr. Byron for bringing to my attention the mix up of the tax ID number as it relates to Day & Night Solar.

As he clearly pointed out, that business was not using the same tax ID.   I apologize for the mix up on my part, and not only have I corrected the original article but also included an updated independent article with the corrected publication to also include the proper third business name that “is” affiliated with the same tax id number referenced in this article.

The reference to three different companies, all using the same tax ID number, should have read: three different company “names”, all using the same tax ID number, which is in fact true.  My failure to include “names” left the wrong impression but was hardly a defamatory action as has been implied.   Strictly Business Inc. (2004-2011), Best Building Systems Inc. (1996-2004), and CMS Renewable’s Inc. 36-4079831 -(April 2011-current), all had the same tax id as one business began the process and it was kept through each name change. 

With that being said, I think it’s time to share some facts to not only support what I have covered to date, but to also prove a certain person may not be telling their lawyer everything they need to know prior to threatening legal action.  Some of the regular readers may recall we had one of our own locals make the same mistake which we exposed in this article.

This is the response letter to the attorney.  As far as my statements regarding the bidding process for the FIPHD being false, I would urge caution in the  making of a claim that is 100% false and without merit.  Is there ANYONE that thinks sending in a several hundred thousand dollar bid by email has any security of being a sealed bid?  Yes, the requirement was to send the bids in by email!  That in itself taints the bidding as there is no security!

For the attorney to draw such a conclusion leads me to believe at best, their client has not been forthright with all the information, or at worst misinformed with intent to intimidate, which won’t work.

They claimed CMS Renewables submitted a written bid for the job. What are we to believe?  Information on file with the county, or the statement from the attorney?

October 7th-2011 letter reflects the FIPHD Director specifically outlines two companies that submitted bids on-line, and neither was from CMS Renewables.  In fact, that same letter outlines that Day & Night Solar, a completely different company than CMS Renewables as the attorney clearly pointed out, is the company that received the contract.

Board Action 158/11 in the minutes also points to a signed contract with Day and Night Solar with no mention of CMS Renewables.

The claim, “the fact of the matter is that CMS Renewables was the bidder” doesn’t appear to be the case Mr. Byron.  In fact, your own client, Julie Clark, even informed the local news reporter that it was in fact Day & Night who supplies the product and since no record supports CMS even bidding the claim doesn’t hold any water. Julie Clark E-mail

So again, whom are we to believe, a letter claiming something entirely different than the clients e-mail to the news, or the approved board action found in the approved minutes, or the signed letter from the Director of the FIPHD?

So now that the record clearly disproves the claims made about who the bid was awarded to, let’s look at the bidding process in which a claim false statements were made as it relates to CMS Renewables and Day & Night Solar.

The implication made was that we impute those companies were not engaging in legitimate business practices, and essentially switching which company is obligated to do the work and receive payment from one to the other.

Mr. Byron, I would again suggest you speak with your client, as the paper trail we have to support our position has clearly not been provided to you prior to your letter being sent.

I emphatically AGREE that the two business practices ARE essentially switching which company is obligated to do the work and receive payments based on the record obtained through a series of FOIA requests; however it’s not payments from one to the other that concerns us nor did I ever reference such.  It’s who is being paid for the work performed as it relates to who the contract was awarded to.

Facts:

1. Signed letters, Board Action recorded in minutes, and e-mails from your client, Julie Clark, all document that the contract was with Day & Night Solar.
2. Invoices sent to the FIPHD are from CMS Renewables, which are not mentioned in any minutes as the bid winner or having ever submitted a bid.

Under what authority would CMS Renewables have to send an invoice for payment to the FIPHD since they were not awarded the bid?  Yes there is a Purchase contract signed by the Director of the FIPHD with CMS however his entering into that contract is done without board approval based on the records in our possession.  References to a contract and winning bid was directed at the other company they operated, which is Day & Nigh Solar. The questionable action is that of the public official, not the private company doing business with them, provided no questionable collusion took place.

The invoice sent to the FIPHD for payment should have come from Day & Night Solar, as that is the company who all records point to as the winning bidder.  If CMS Renewables wishes to be the installation arm of the products sold by Day & Night that is all fine, however, its safe to conclude CMS needs to bill Day & Night Solar for those services but that is not what has happen at all….or did they?

Is it possible CMS did in fact bill Day & Night for this work?  That might be an interesting twist if that were the case as Day & Night would be paying for a service to its own company that already got paid by the public body. That would establish a great deduction for a business expense for Day & Night while never really losing any funds since it could be collected directly back from CMS.  Of course this is clearly a hypothetical as I have no way of reviewing such a transaction short of a subpoena and surly a reputable business wouldn’t make that kind of error!

The attorneys client specifically spells out that CMS is the installation arm for Day & Night.  If that is the case can we assume CMS has submitted a false claim to the FIPHD considering those invoices were for the entire project?

Wouldn’t you agree that the winning bidder is the one the FIPHD is obligated to pay?  We have not found a single invoice from Day & Night Solar, which according to his client and all the records, is the business that should have been sending an invoice as they won the contract.

Even more egregious, the laundry list of e-mails on this entire solar panel project point to Day & Night Solar as the bid winner, then emails show up from people on behalf of CMS Renewables with a Day & Night Solar e-mail address, which points to a co-mingled operation.  I see it no other way when Day & Night even reports that they have partnered with CMS Renewables and even claim CMS is a Day & Night company!

Regardless of the partnership of two distinctive companies, there are no records pointing to CMS as the bid winner for this project, yet they are submitting the bills with numbers quoted from Day & Night Solar.

So I must ask Mr. Byron, with all those facts laid out, would you consider that engagement in legitimate business practices? Regardless of your position, my article on this matter was focused on the actions of a public body who paid invoices to a company that never received the winning bid. However, since you raised the issue of legitimacy I believe by all indications from the records, the actions are questionable at best.

As far as our references to a “problem” and “issues” let’s be clear.  The problems and issues were not singled out to be specific to their client or their company as they attempt to imply!

He stated in his letter that our website states that there was a problem and issue with the Health Department purchase of solar panels from Day & Night, and that problem “relates to” Stanley Clark being a member of Day & Night and an officer in CMS Renewables, while Julie Clark is an officer for the health department.

Mr. Boyer that is a total fabrication of the facts and a sad attempt at misrepresenting the truth.

I specifically stated, “It didn’t take long to see there is definitely a problem with what is going on as it relates to spending”.  I listed 25 items of which I consider all of them to have problems as it relate to spending and the records we have will support that all day long.

As far as the second part of their claim, as I stated, “the biggest issue that stuck out is the Solar Panel Purchase, the company that received the bid, and the company that got paid for it as it relates to who works for the very office doing the purchasing.”  Mr. Clark does not work for the very office in question so his implication is incorrect and without merit.

Please note that nowhere in that statement was Stanley Clark’s name mentioned as it relates to that purchase nor was it implied.  What is implied and upheld by the record, their client, Julie Clark, has no copy of a Disclosure of Economic Interest statement filed in Iroquois County, a requirement by law.

I think it is an issue when an employee of a public body, which makes her a public official as well as a public figure, is directly tied financially to a project and even takes steps to secure the financing, yet makes no disclosure of her interests to the public body who employs her.

The other valid issue is just as I have stated before, the company that received the bid contract was not the same company getting paid!  I made no insinuation or implication that Mr. Clark did anything wrong as it relates to the purchase of solar panels by the Health Department.

I do take note that now in his 4th paragraph, he is co-mingling Day & Night and CMS Renewables as wining the contract that arose from the FIPHD solicitations.

So Mr. Boyer, what are we to believe?  Your third paragraph of your letter where you state CMS was the bidder, awarded the contract, and paid for the contract, or this new co-mingled statement in paragraph 4 that ties them together as winning the contract?  Remember, they are two different companies as you pointed out so they cant both win the bid!

I made no mention of anyone’s personal gain in the contract, but since he brought it up, of course his clients would gain if they got the contact.  There is nothing wrong with free enterprise nor any implication counter to that.

He is correct, Ms. Clark is not the person at the health department who makes the decision to accept a bid and award a contract, nor does it appear her duties include securing financing for the project.  That being the case, I wonder why both she and her husband are included in the CC section of emails regarding this whole process?

My statements are based on official public documents from public officials on a matter of public concern, and I have properly attributed the information to that source and did so fairly and accurately based on those documents.

As I informed Mr. Byron, if his clients have documentation that is in dispute with the public record I would encourage and welcome him providing a copy so that it could be published to ensure the whole picture is properly displayed.

In closing, I am confident that if these people want to move forward with legal action for the reporting of information obtained through legal means, the exercising of my subpoena powers will be fully exercised and I will continue to provide public information to the public without fear from threats and intimidation.