McHenry Co. (ECWd) -
Thomas Gooch III filed a "DEFENDANT'S COMBINED MOTION TO DISMISS BROUGHT PURSUANT TO 735
It is a most interesting read, and clearly, Gooch has failed to do the deep dive into public records as those very records and exhibits prove many parts of his motion are false and misrepresent the truth and application of the law in our opinion.
"All of the Counts ignore the Township Code enforced in the State of Illinois and ignore the fact that the Highway Commissioner does not have the ability to pay anyone any amount of money rather it is the town Board of Trustees, which first approve the expenditure".
Gooch is a master at comingling terms in his pleadings and creating confusion. For example, he outlines a Highway Commissioner does not have the ability to "pay" anyone any amount of money then implies it is the Board of Trustees, which first approve the expenditure.
Comingling the term "pay" and "expenditure" misrepresents the facts. Those terms have separate meanings and applying the law, his motions appear to be a clear misrepresentation to the court.
Former Algonquin Township Road District Highway Commissioner Robert Miller was a master at using a Credit Card. Use of that card initiates both a payment to the one selling goods and is an expenditure by Miller that had no board approval. So for Gooch to claim Miller had no ability to pay anyone any amount of money is simply not true. Additionally, to claim expenditures are first approved by the Board of Trustees is simply false and the record proves that. Miller routinely made purchases in advance of any Board meeting and the credit card statements prove that.
"Only after that approval has been given by the Board does the Treasurer pay it."
The record proves that the Treasure paid bills and did so without any board approval. We challenge Gooch and Miller to prove otherwise.
"In fact, Plaintiff fails to point out any statute giving the Highway Commissioner sole authority to spend
Gooch hangs his hat on claiming only the Board of Trustees has authority to spend money. If we are to believe Gooch, then how on earth did Miller spend so much money prior to any bill being presented for payment? He did so with a credit card that bound the public body to a bill that was never approved in advance. It would appear Gooch just exposed his client, as it is clear, Miller spent money and did so all on his own.
We contend that Miller was never authorized to have a credit card. Some may laugh at such an allegation, however, the law is clear, and no such power was ever provided to a Highway Commissioner or a Road District. For example, in the Community College Act, it specifically spells out who can have a credit card.
110 ILCS 805/3-7 "The board of each community college district may adopt a policy providing for the issuance of bank credit cards, for use by any board member who requests the same in writing and agrees to use the card only for the reasonable expenses which he or she incurs in connection with his or her service as a board member. Expenses charged to such credit cards shall be accounted for separately and shall be submitted to the chief financial officer of the district for review prior to being reported to the board at its next regular meeting. "
Had the Legislature intended for Road District and Township officials to have a credit card they would have included it in the statute. The fact they did not point to them being prohibited from such.
"What is lacking in these Counts is an allegation that rather than following the prescribed statute, Defendant ROBERT MILLER somehow subverted and spent the money without obtaining the legislative approval of the Township Board of Trustees."
Gooch implies approval came before the spending. A review of the minutes from January 2016 to May of 2017 (only records available online during Miller's control) we were only able to find a "single" time where an actual expenditure was approved and that was in May of 2017. If anyone finds otherwise please let us know and we will update accordingly.
"In the aforesaid Counts, in each and every instance, Plaintiff has chosen to ignore the fact that all of the complained of expenditures received the legislative approval of the Township Board of Trustees formally known as a Board of Auditors"
Who is ignoring facts? - "all of the complained of expenditures received the legislative approval" ?
We welcome Gooch to provide any evidence to support his claim that each and every expenditure received the legislative approval of the Township Board of Trustees, let alone approved before the expenditure was made.
We found only one case where Miller's expenditures were approved between January 2016 and May of 2017. There is not a single reference in any of the minutes that we saw in our review that pointed to a motion to approve the expenditures being made, which is, in fact, a different action than simply auditing the accounts as the law outlines.
We did find routine motions to "audit the bills" however the Township code says nothing about auditing bills. If Gooch makes the attempt to imply auditing of bills and approving bills are the same, he has bigger problems as they are not the same action.
60 ILCS 1/80-10 (a) The township board shall meet at the township clerk's office for the purpose of examining and auditing the township and road district accounts before any bills (other than general assistance, obligations for Social Security taxes as required by the Social Security Enabling Act, and wages that are subject to the Illinois Wage Payment and Collection Act, or other expenses determined by the township board by resolution) are paid, provided that payments made pursuant to a board resolution shall be reviewed and verified at the next meeting. The board may meet at other times as they determine. The township board may consider and approve bills individually or in a summary statement of any number of bills.
The purpose of auditing "accounts" is to ensure there are funds available and appropriated for expenditures. The fact it provides permission to approve bills individually or in summary makes it clear, auditing is not the same as approving.
Considering the "bills" being audited by the board were for "expenditures", the record proves his words to be false. A bill is for an expenditure so the fact it is being audited by the board indicates the expenditure already took place before the Board of Trustees approved it.
The Highway Code does point to different language regarding audits. It states that before an order of the highway commissioner can be paid, the board must examine and audit the claims or charges for which such order is drawn. Reading the minutes it appears the trustees audited those claims however the highway code obligation does not circumvent their obligation to approve those bills as outlined in the Township code.
Questionable legal advice compounds the problem for the Township Board. In the one set of minutes where we actually found a motion to approve an expenditure, Attorney Kelly responds to a question. Here is what is recorded in the minutes:
"Trustee Emery asked Atty. Kelly if they could back out of the purchase. Atty Kelly said that the board's authority is to audit bills, but if an expense is in the budget, it is a legitimate expense."
For starters, he never answered the question. Kelly is a master at that. Additionally, just because a person puts something in the budget it does not make it a legitimate expense. Using Kelly's logic, Miller could have put in the budget a line item for all kinds of personal expenditures and if the budget was adopted then presto, it's legitimate. Fortunately, that is not how it works.
"Plaintiff would have this Court believe that Defendant MILLER simply spent the money."
Uhm...., he did! And did so without approval according to the minutes.
"In fact, Defendant MILLER presented the bills, if the statutes were followed, to the Board of Trustees who gave their legislative approval."
If the statutes were followed?
Considering we failed to find minutes where the Township Board of Trustees actually approved bills we would say they failed to follow the statutes. Miller routinely put the cart before the horse. Using Gooch's own words:
"Unless, and only unless, the Plaintiff can allege that the Board of Trustees never approved payment of the bills in question and somehow Defendant MILLER was able to obtain the money by circumventing the Board of Trustees."
The record of the Board of Trustees, the minutes, have no record of bills being approved except in one instance. So the first prong of Gooch's argument crumbles. There is no need to allege. The minutes are a legal document and they do not reflect any motion for approval of expenditures that took place, other than May of 2017. The fact Miller routinely spent money through credit card use proves he was expending funds which had no board approval. The fact the Supervisor paid a credit card bill of Miller's expenditures and did so without any documented approval should tell the courts that Gooch's claims are less than accurate.
"Plaintiff ignores the fact that it was the Board of Trustees of the Township who approved all of the bills set forth in Count IX and not Defendant MILLER."
Not seeing any affidavit to support such a claim. Nor are we finding any documentation to support such a claim in the Township Minutes. We welcome anyone that can point us to minutes that reflect Gooch's position that the Board of Trustees of the Township did, in fact, approve all of the bills set forth in Count IX. The minutes, available to Gooch and anyone else willing to go to the Township website will find there were no motions to approve bills, either individually or in summary statement.
"ROBERT MILLER contends that all of the payments made were approved by the treasurer and board of trustees under the Township Code."
All payments made were approved by the treasurer and board of trustees?
Minutes of the Township say otherwise.
"ROBERT MILLER's bills and expenses were approved and paid"
Wrong, they were paid but approved only once in May of 2017.
"Plaintiff should have joined the required parties that approved the bills and expenses by ROBERT MILLER"
Since no one approved the bills and expenses, other than Miller, how do you join them in the case as Gooch states?
The public record available for all to view is substantial and indisputable. We found ONE motion to approve expenditures. Considering Gooch has provided nothing to support all expenditures obtained approval and the record disputes that, Gooch may have a problem before the court.