EDGAR CO. (ECWd) -
In an e-mail I received several months ago from Mr. Isaf, he spelled out how he came to a conclusion on a particular legal matter we had debated. I find the information he provided absolutely priceless, as it now relates to the Conflict of Interest with Chris Patrick.
Mr. Isaf is taking the position that somehow “Influence” must be present to support a finding of a conflict, or that it’s not a conflict until a specific action is taken. He also disagrees with the “broad” approach IDOT has taken that has led to where we are at. He gave an example that if a project didn’t have cement then that project should not be held up. Now on the surface most would agree, but it’s not that simple, nor does case law support such a position.
In fact, the state statute makes NO REFERENCE what-so-ever about influence being present as a requirement to support a Conflict Of Interest charge and case law uses the same Broad approach as IDOT, for many reasons!
Before digging into all the facts let's first look at the information Mr. Isaf provided to me in an e-mail.
“My opinion is inferred from the statute’s language and is subject to the rules of statutory construction which can be hard to understand for a trained lawyer, so I then went a step further and provided an appellate court case interpreting the language of the statute pretty clearly.”
Mr. Isaf, I challenge you to apply your own standard of practice to the situation with Chris Patrick. If you do, there is NO logical way you can take the position there is no conflict of interest.
Using the logic provided by Mr. Isaf, let’s look at the appellate court case that clearly interprets the language of the specific statute covering the conflict, which is a standard of acceptance set by Mr. Isaf in his own words!
I will key on what are the most important elements of that case and how it applies to Chris Patrick and why it proves Mark Isaf is absolutely wrong in his position presented. Wrong for many reasons but most importantly, A violation of the law has already taken place yet Mr. Isaf REF-- USES to talk about that action which raises integrity questions, or lack of in my opinion as it relates to Mr. ISaf.
The entire case can be read by clicking on the title.
On appeal in this court, the issue to be determined is whether Savaiano's conduct fell within the prohibitions of section 3 (ch. 102, § 3) referred to. That provision, which is one of several Illinois laws designed to proscribe self-dealing by public officials, reads, in relevant part, as follows:
"No person holding any office * * * may be in any manner interested, either directly or indirectly, in his own name or in the name of any other person, * * * in any contract or the performance of any work in the making or letting of which such officer may be called upon to act or vote. * * *" (Emphasis added.)
That means they have focused on the legal basis, which they clearly have identified the key prongs of application, which I talked about in this article! They don't cite the entire statute as it's the key points that drives the intent of which they use to base their ruling on! Does ANYONE see the word "influence" in the Appellate Courts words? NO, because influence is not a requirement found in the statute!
The BROAD approach that IDOT has taken on all matters as it relates to Chris Patrick, which Mr. Isaf disagrees with, can be traced right back to this Appellate court case! Realize when these cases are determined, they depend on a vast amount of background as it relates to legal cases and they make numerous references to those cases to build the foundational argument, of which many come from other states.
I am going to build this argument on a rock!
(Numbered items are directly from the appellate case referenced)
1. Illinois courts have had occasion to construe conflict of interest statutes to prevent evasion of the legislative intent in prohibiting self-dealing. See, e.g., Koons v. Richardson (1923), 227 Ill.App. 477 (contract signed immediately before party became city officer); School Directors v. Parks (1877), 85 Ill. 338 ("contracts" includes implied contracts also); People ex rel. Pearsall v. Sperry (1924), 314 Ill. 205, 145 N.E. 344 (irrelevant whether interested officers received actual benefits or whether a city made the best deal possible or whether there was no fraud involved)
What is in bold was alluded to in yesterday's meeting as if it would be OK if it meant the county was getting the best price for concrete provided Mr. Patrick didn't influence anything, which you can see is 100% false and not supported by the appellate court ruling!
2. Since it is not relevant whether the interested officials actually benefit from their wrongdoing, it would seem consistent to say that it is also irrelevant whether the government actually signs a contract based upon the improper conduct which is sought to be proscribed.
That clearly means, the person does not have to benefit from the wrong doing nor does there need to be an actual contract signed for their to still be a conflict of interest!
3. The title of the Act with which we are concerned (ch. 102, §§ 1-4) also suggests a broad purpose when it is described as "An Act to prevent fraudulent and corrupt practices in the making or accepting of official appointments and contracts by public officers."
The Broad purpose, which Mark Isaf disagrees’ with, is taken for many reasons but a key important reason is because with so many different circumstances involved, such as one case may be a conflict while another is not, it would require a police power to monitor each and every transaction to ensure compliance with the statute. Knowing that is not feasible the legislation is intended to be a Broad approach to ensure the public’s interest come first. Case law clearly spells out key words that support this fact!
Case and point as it relates to Mr. Patrick: NO ONE said a word about the purchase of Zimmerly Ready Mix by the county, the call for a vote to pay the invoice by the Chairman, Chris Patrick, and the acceptance of those payments by Mr. Patrick.
The broad approach is applied because if you don't, as in this case, a transaction that clearly violates every aspect of the law goes un-noticed had it not been for our exposing it.
Mr. Isaf should be prosecuting Chris Patrick on those three transactions as we speak but no, he does NOTHING!
4. "The interest against which the prohibition is leveled is such an interest as prevents or tends to prevent the public official from giving to the public that impartial and faithful service which he is in duty bound to render and which the public has every right to demand and receive."
Prevents or Tends to Prevent!
Clear language that spells out the intent of the statute was to prevent or tend to prevent such conflicts from arising. Waiting for it to happen is to late! From what we heard out of Mr. Isaf, it sounds as if he is of the opinion that there is no conflict until a specific action is taken and there must be influence, which is not true!
His position is inconsistent with the Appellate Court's opinion, which is his standard for understanding legislative intent!
5. We believe that the legislature intended to make illegal such an interest, and not to make it dependent upon the ultimate existence of a formal contract.
Again, the courts have clearly stated, a conflict of interest is not dependent upon the ultimate existence of a formal contract. Mr. Isaf, your attempt to allude otherwise is in direct conflict with the very courts you claimed to turn to for guidance!
6. The Ohio Appellate Court noted the policy of the law is to strictly construe the statutory prohibitions, not in favor of, but against a public office holder having a tangible financial or beneficial interest or personal advantage in matters concerning which he must deal as a public employees.
Don’t get hung up on this one coming from Ohio! It's quoted in the Illinois Appellate court case as part of the supporting arguments that upheld a conflict of interest case and has huge meaning in the situation with Chris Patrick!
While Mr. Isaf is taking the position of defending his public officers, he fails to understand that his duty also requires him to determine which party is correct and that is who he is to represent!
In this case, the people are correct and he should be prosecuting Chris Patrick, not defending him! That is directly from the Illinois Attorney General!
7. It is a general rule of law, and the law in New Hampshire, that `there is a conflict of interest when a public officer votes on a matter in which he has a direct personal and pecuniary interest'.
Again, directly from the Illinois Appellate Court case. There is no argument that Chris Patrick had a direct pecuniary interest in calling a vote to pay bills, of which three of those payments went to his own company. That act itself solidifies a violation of the Act yet Mr. Isaf refuses to even discuss that issue, let alone prosecute it.
8. As the Connecticut Supreme Court also stated in Josephson v. Planning Board (1964), 151 Conn. 489, 493, 199 A.2d 690, 692 Public policy requires that members of such public boards cannot be permitted to place themselves in a position in which personal interests may conflict with public duty"
Again, the Appellate Court, the standard bearer that Mr. Isaf claimed so important and who he turns to for guidance to support his argument on legal interpretations of statutes, clearly, reflects that Chris Patrick just being “placed” in a position where his personal interest may conflict with a public duty constitutes a violation, as it specifically states, cannot be permitted!
9. "In holding the indictment to be within the purview of the provisions * * * we believe that this conclusion effectuates the object of the statute and serves as a remedy to prevent evil which could arise in the absence of a penal provision. This interpretation is consonant with the legislative intent to preclude a public officer from misuse of the powers of his office for his own profit, to prevent influenced decisions, and to effectuate the advancement and protection of the public good, which, in the final analysis, constitutes the basic underlying purpose of the statute.
Mr.Isaf, use your own go-to standard of the Appellate Court and accept the fact that the advancement and protection of the public good takes precedent over protecting Chris Patrick.
It’s clear the purpose is to prevent evil, preclude a violation before it takes place, and prevent influenced decisions!
10. We agree with the Florida court and conclude that section 3 (ch. 102, § 3) should be interpreted to include conduct such as engaged in by Savaiano. The success or failure of the official in procuring a government contract involving his unrevealed private interests is not indispensable to the crime of "Interest in Contracts" since the prohibited conduct is the carrying on of negotiations while holding a private interest.
Clearly Chris Patrick holds a private interest and when he can call a vote to pay bills and those bills include a private interest to him, of which he was paid, a violation of the most basic understanding of the statute has taken place.
Since Mr. Patrick has already proven he cant be trusted to comply with his own recusal letters, can anyone honestly conclude that he would not discuss supply issues with the contractors bidding on the projects, which would be negotiating while holding a private interest?
Its hard to say either way and that is the VERY REASON the statute is so broad in its application. Its designed specifically to PREVENT the conflict by not allowing the person to place themselves in the position in the first place!
11. "* * * we are not here concerned with the technical terms and rules applicable to the making of contracts. The Legislature instead seeks to establish rules governing the conduct of governmental officials. In this sense, is an act done or an agreement "made" only when the final, objective affirmation is communicated? It is true that no rights and duties accrue and no contract is technically made until such time, but the negotiations, discussions, reasoning, planning and give and take which goes beforehand in the making of the decision to commit oneself must all be deemed to be a part of the making of an agreement in the broad sense."
Not convinced yet that each and every point proves Chris Patrick has a Conflict of interest?
What does the Illinois Supreme Court have to say on the subject?
The Illinois Supreme Court has stated that section 3 of the Act is intended to prohibit interests which prevent or tend to prevent a public official from impartial or faithful service. (People v. Adduci (1952), 412 Ill. 621, 627.) Further, the court has stated that the language of section 3 addresses not only the actual bad-faith abuse of power for an officer's own personal benefit, but also is designed to prevent the creation of relationships which carry the potential for abuse. (Brown v. Kirk (1976), 64 Ill. 2d 144, 151.) Thus, the central concern of the Act is the existence of competing interests or loyalties which could hamper a person's performance as a public officer. Croissant v. Joliet Park District (1990), 141 Ill. 2d 449, 458.
Clearly Mr. Patricks performance as a public officer is hampered because of his loyalties to his own company. So much so that Mr. Isaf is helping him to avoid the performance of those duties!
Mr. Isaf claims to be drafting a resolution that would allow the Vice Chairman to sign for contracts hoping IDOT would accept that as an alternative.
Wake up Mr. Isaf! Get involved and start reading and comprehending the emails that were handed out that will tell you what a waste of time it is to draft a resolution for the Vice Chairman to sign!
From the Highway Department to IDOT: Scott, Due to the ongoing conflict of interest situation, the highway department will once again not have agenda items on this month’s county board meeting agenda.
We're down to the last month in getting the agreement executed for the June (fy13) Lower T Project. It will have to be on the April Board meeting or we’ll likely lose the money. The final joint agreement for a 6/14/13 letting is due to the district by 4/19.
Assuming that the situation remains unchanged; will the District honor a resolution appointing the Vice-Chair signatory authority to sign the LA/Fed agreement next month?
Response from IDOT:
Aaron, I have spoke with Joe Crowe, Deputy Director of Highways-Region Three Engineer, and at this time the District has put a hold on approving all agreements and plans that include federal or state funds until the County’s State's Attorney has met with the Department’s Office of Chief Council to address the Conflict of Interest.
So it would appear pretty clear that the suggestion of the Vice Chairman signing didn’t sway IDOT so what makes him think a resolution attempting what has already been shot down is going to change anything?
As I have mentioned before, the mere fact that that you think we even need another person to sign for the Chairman is an admission of a conflict! If there wasn’t, why have anyone else sign?
More importantly on that topic, Mr. Isaf implied what I consider a fabricated excuse to defend Chris Patrick because the people elected him. May I suggest he first realize the rights of the people come first and if you allow him to negate his duties because of a conflict, that in itself is a disservice to the people who elected him to do his job.
Placing his personal interest ahead of the voters violates that very principal he implied to protect him. He was elected to perform specific duties of which Mr. Isaf is now trying to find ways to allow him to negate those duties and that sir is the real disservice to the public that not only elected Mr. Patrick, but those that elected you as well!
And you want to be a Judge?
Why would you side with Chris Patrick in his attempt to imply the Paris Beacon was wrong in their conflict story that was front page recently? You defended Mr. Patrick with the assertion that you only know of two projects at risk and you know that is 100% patently false. Clearly the Lower T road is approaching a deadline and is in fact at risk of being lost and Mr. Isaf KNOWS that!
Mr. Isaf’s efforts to draft resolutions to provide wiggle room flies in the face of everything good and clearly feeds the evil as it relates to the Conflict of Interest Chris Patrick has.
Mr. Patrick can’t be trusted!
Within days of his recusal letter he violates it! He has already sold materials directly to the county which completely takes away the argument that he is only a material supplier to a contractor. He supplied materials not only to the county directly and called for a vote to be paid but also sold thousands of dollars of materials to the Airport all while sitting as the Airport Chairman, and was paid for it and the public record proves it!
At what point Mr. Isaf do you either do your job and prosecute these actions that clearly fall into the very standard bearer you turn to for interpretations, the Illinois Appellate Court, or ask the Attorney General to come in and do your job for you?
And if this information isn't convincing enough, look at what was reported today in the Paris Beacon!
"Isaf repeated the crux is if someone uses their elected position to pay themselves"
HE DID MR. ISAF!
You are doing NOTHING to hold him accountable to the very thing you claim is the crux of the situation!
There is so much more to cover from just this one meeting which will have to be done in other articles but know this Mr. Isaf, we are not going away and we are going to expose each and every misleading thing you stated in the meeting yesterday!
Download the audio from the meeting here - it's about a 32mb file size and well worth listening to as you will clearly hear the dancing
Video will be available in a separate article in a couple days!