Algonquin Township – Salt Gate II – The witch hunt begins

McHenry Co. (ECWd) –

The Northwest Herald reports that Algonquin Township Highway Commissioner Andrew Gasser is being investigated for Official Misconduct (OM), related to the purchase of salt.  They reported records are being requested beginning from Gasser’s first day in office.

A recent salt delivery appears to be the focus of their reporting with claims Gasser paid about $30.00 more a ton than others because it was not bid out. They cite salt prices from Lake County to support their “about $30 more” narrative and then only reference Illinois State CMS as another source for purchasing but make no mention of their price.

According to records we received months ago, Grafton Township paid $69.21 a ton from the State CMS system in March of 2018.  That is $21.79 less than the reported $91.00 price paid by Gasser.  As people can see, $21.79 is not even close to “about $30.00 more” a ton.  We raise this to once again show how certain reporting tends to push a narrative that paints a picture worse than it really is.

Salt Gate II all started when Algonquin Township Trustee Rachael Lawrence took it upon herself to file a criminal complaint against the Road District Highway Commissioner and informed the public of her actions during a past Township board meeting.  She alleges a criminal act was committed by Andrew Gasser for a recent salt delivery.  Her contention, it was not bid out, thus a crime was committed.

UPDATE: After publication, Trustee Lawrence now denies filing any criminal complaint and states our stating such is a lie.

She now states: “Referring documents to investigate or ensure compliance with the law is not filing a criminal complaint. I certainly never signed one.” 

We stand by our original statement as filing a criminal complaint does not require a signature and it appears her own words on the McHenry County Blog confirm she did, in fact, request a proper investigation by the authorities.  “I turned over said documents to law enforcement and requested a proper investigation by the authorities to ensure full compliance with the law, as is my duty as an Algonquin Township Trustee.” I have faith that law enforcement will detect what, if any malfeasance took place, and take appropriate action, again-if any.

She also now claims she never alleged a criminal act was committed by Gasser. Considering law enforcement is in the job of investigating allegations of criminal acts, are we to now believe requesting this investigation had nothing to do with an allegation of a criminal act?  My notes reflect that she told me she was doing some more digging and that it appeared he committed a crime for not bidding out the salt.  She denies being our source now.

For those not familiar with the original Salt Gate event in Algonquin Township, the past road commissioner actually gave salt away three years in a row to a private non-profit.  The State’s Attorney found no crime in giving that public property away. In fact, he said he believed Miller’s actions were more oversight or indiscretion resulting from poor internal controls.

“While Miller’s actions might be deemed “unlawful” upon a mechanical application of the law, we believe his actions here are more oversight or indiscretion resulting from poor internal controls as opposed to self-serving public corruption wherein the People would have an interest in bearing the expense of a prolonged felony prosecution.”

That being the case, it appears the bar has been set. Logic would indicate that if a 20-plus year highway commissioner can have an oversight or indiscretion resulting from poor internal controls which permits him to give public property away, so too would a newly elected highway commissioner, and board of trustees, be permitted to buy salt and actually keep it and use it for the public purpose it served without bidding it out.

In order to be clear on this matter, there are two cases we are dealing with.  The first would be the purchase of salt in 2017 immediately after taking office and then this year’s salt “delivery”, which Lawrence has expressed was a criminal act and wants Gasser prosecuted, even though there was no purchase of that salt.

UPDATE: After publication, Trustee Lawrence denies saying she wants Gasser prosecuted.  Although I don’t have a recording of our conversation, as that would be a criminal act, my notes reflect otherwise.  What is in the public record is her statement of:  “I have faith that law enforcement will detect what, if any malfeasance took place, and take appropriate action, again-if any? 

What does take appropriate action mean in a criminal investigation?  For those of us that have seen many complaints to law enforcement, we have yet to see one where the one complaining did not want the person prosecuted for the allegation that started the investigation.   All that aside, Lawrence now denies saying she wants Gasser prosecuted.

In her closing comment on Facebook, she states, “It’s truly pathetic where your blind loyalty to him has led you.”  We contend what is pathetic is waisting law enforcement’s time and resources on a matter that was not criminal.  As far as our having blind loyalty to Andrew Gasser, no such loyalty exists, blind or otherwise.  We have cited the same statutes that Gasser is bound by as we did reporting on his predecessor.  Our loyalty lies with the public record and what it proves when compared to the law, not who the office holder is.

The 2017 purchase was made with no bidding, and the bills submitted to the Trustees for audit and payment by the Supervisor.  By all indications, neither Gasser nor the trustees had any issue with that purchase.  Being a new Highway Commissioner has to be taken into consideration as no one expects a newly elected official to know each and every applicable law.  While not an excuse for making a no-bid purchase, it does not rise to the level making Gasser a criminal as Lawrence and others have insinuated unless there is evidence of a personal gain.

What did the McHenry County State’s Attorney’s final report on the Miller investigation say about Miller’s questionable purchases?

“Miller’s purchases were all reviewed and approved by the Township Board. There is no evidence that Miller attempted to conceal or misrepresent any Road District expenditure”

In this case, Gasser’s salt purchase in 2017, which had zero personal gain involved, was reviewed and approved by the Township Board. There is no evidence that we have found pointing to any attempt to conceal or misrepresent this Road District expenditure.

What is laughable in this matter, is that James Kelly was the Attorney for Gasser when the 2017 salt purchase was made and we can’t seem to find any input from Kelly on that one.  While we understand the Attorney is not responsible for actions of elected officials, one would have expected better legal input and direction to be provided to the newly elected officials, his clients.

As it relates to the 2017 no-bid salt purchase, will Gasser receive the same standard as applied to Miller?

It appears those screaming for prosecution lack any understanding of criminal law and its application.  That lack of understanding will once again cost the taxpayers and public officials time and money and we believe no convictions.  At best, Lawrence gets her name in the paper again and more mud can be slung towards Gasser for reasons we will never understand.

Our perspective on this matter comes from using other similar situations we have seen, the McHenry County State’s Attorney’s own words, the applicable statutes covering this alleged crime, and case law as it has been applied to such things.

Keep in mind we are not attorneys however we do stay at Holiday Inn Express!

OK, on a serious note, we have spent hundreds of hours reading case law on matters related to public bodies and how the laws are interpreted and applied by the courts to include the criminal law of Official Misconduct. It’s simple to read but routinely misapplied by those that have not read an extensive amount of case law on the subject.

What is Official Misconduct?

“The official misconduct statute was designed to prevent a public officer or employee from using his official position in the commission of an offense. As the provisions of the statute indicate, a charge of official misconduct under section 33-3 must specify the “law” allegedly violated by the officer or employer in the course of committing the offense. (See, e.g., People v. Bassett (1988), 169 Ill. App.3d 232, 235; People v. Weber (1985), 133 Ill. App.3d 686, 690-91 (“law” includes civil or penal statute, supreme court rule, administrative rule or regulation, or tenet of professional code”

720 ILCS 5/33-3. Official misconduct. (a) A public officer or employee or special government agent commits misconduct when, in his official capacity or capacity as a special government agent, he or she commits any of the following acts:
(1) Intentionally or recklessly fails to perform any mandatory duty as required by law; or
(2) Knowingly performs an act which he knows he is forbidden by law to perform; or
(3) With intent to obtain a personal advantage for himself or another, he performs an act in excess of his lawful authority; or
(4) Solicits or knowingly accepts for the performance of any act a fee or reward which he knows is not authorized by law.

So in order to apply the Official Misconduct statute in a criminal prosecution, the charge must state the law that was violated.  Then, once that law is identified, the key elements of the Official Misconduct statute must be applied to those specific laws. So there is no confusion, just because a law was not followed does not default such failure to a criminal act.

So what Statutes pertain to bidding for the Highway Commissioner and his salt purchase in 2017 and order and delivery in 2018?

720 ILCS 5/33e-6 (e)-Interference With Contract Submission and Award By Public Official, Any public official who knowingly awards a contract based on criteria which were not publicly disseminated via the invitation to bid, when such invitation to bid is required by law or ordinance, the pre-bid conference, or any solicitation for contracts procedure or such procedure used in any sheltered market procurement procedure adopted pursuant to statute or ordinance, commits a Class 3 felony.

605 ILCS 5/6-201.7 “…….Except for professional services, when the cost of construction, materials, supplies, new machinery or equipment exceeds $20,000, the contract for such construction, materials, supplies, machinery or equipment shall be let to the lowest responsible bidder after advertising for bids at least once, and at least 10 days prior to the time set for the opening of such bids, in a newspaper published within the township or road district, or, if no newspaper is published within the township or road district then in one published within the county, or, if no newspaper is published within the county then in a newspaper having general circulation within the township or road district, but, in case of an emergency, such contract may be let without advertising for bids.”

Note that both statutes related to bidding point to a contract as a key element. In both the 2017 purchase and the 2018 delivery of salt, there was no contract awarded.   And right now, some are shocked that we would make such a claim.  We understand.  In fact at one point early on in our work, we would have insisted that the 2017 purchase of salt without bidding constitutes a contract but we later learned how to apply the court’s rulings on our laws.

Can there be a valid contract when bidding requirement were not met?

“Where a statute requires competitive bidding, compliance with the statute is mandatory, and the failure to comply renders the resultant contract invalid. (Premier Electrical Construction Co. v. Board of Education (1979), 70 Ill.App.3d 866, 871, 27 Ill.Dec. 125, 129, 388 N.E.2d 1088, 1092.)”

So if the contract is invalid for lack of bidding and the purchase was made, is that criminal?

Ford County Sheriff Mark Doran, neglected to publish a notice in any newspaper for a Board approved purchase of a generator and installation for $72,576.   County code mandates bidding and there was none.

Is that Sheriff a criminal, much like Lawrence is claiming Gasser is?

Ford County State’s Attorney – “There’s a case from the Fourth District (of the Illinois Appellate Court), which is what Ford County is in, that addressed a similar type of issue. It says that where a statute requires competitive bidding, compliance with the statute is mandatory. The failure to comply renders the result and contract invalid. So that’s kind of where we’re at today.”

“The invalidity of the contract with Altorfer Inc. and Waters Electrical Contracting Inc. means the commission now needs to seek bids again — this time as prescribed in the law.”  (As reported in the Paxton Record)

Of special interest is the fact this was a case where law enforcement failed to bid as outlined in the law, and his legal counsel, the County Prosecutor, makes no reference of any crime being committed but simply instructed them how to fix their mistake of not bidding.

What did Gasser do when the failure to bid was identified?  He not only took it upon himself to stop any possible payment, but he also took steps to fix his screw up and sought bids as prescribed in the law. Much the same as a Sheriff had to do by direction of the prosecutor.

Understanding how the courts have applied our laws is key and people need to know that each and every word in a sentence has meaning and must be applied.

When an allegation of a violation of the law is made one needs to identify if there are specific penalties for such violations and properly apply them before jumping to a conclusion that a criminal act was committed.

This is important because the legislature provided specific direction on how to deal with Highway Commissioners who  willfully refuse to perform their duties.  Of interest is the fact they make no mention of such failures being criminal in nature as they have done with other statutes pertaining to obligations of public officials.

(605 ILCS 5/6-204) If any highway commissioner wilfully refuses to perform any of the duties enjoined upon him by this Code, he shall forfeit not less than $10 nor more than $50, and may be proceeded against in the name of the district for the recovery of such forfeiture before any court of the proper county having jurisdiction. 

I emphasized willfully refuses above because it points to intentional criteria (a mental state). For Gasser to be subject to that specific statute, one would have to prove he willfully refused to bid out the salt. We all know that is not the case.  He screwed up and fixed his mistake.  Again, please note that there is no criminal reference in the statute for such a violation.

Gasser’s first salt purchase was approved by the very auditors that are now demanding prosecution?  The second alleged purchase was actually never purchased.  No money was exchanged, no personal gain was obtained, and no one was harmed as the cost per ton was the same when it was bid as it was when not bid.  His actions do not appear to come close to being a willful refusal to follow the statute.

Other examples of statutes containing penalties for public official’s failure to comply with their obligations points to removal from office and criminal charges.

For example, In the Township Code, a Supervisor shall be disqualified to act as the Supervisor if he refuses or willfully neglects to perform any of the duties of the office and shall forfeit to the township the sum of $50.00.

(60 ILCS 1/70-40) Sec. 70-40. Failure to perform duties; forfeiture and disqualification. If any supervisor refuses or wilfully neglects to perform any of the duties of the office under the preceding Sections of this Article, he or she shall forfeit to the township the sum of $50 and shall be disqualified to act as the supervisor of the township. 
(Source: P.A. 82-783; 88-62.)

What does the Fire Protection District act say about violations of certain parts of its act?

 70 ILCS 705/4 Trustees; conflict of interest; violations. -(e)Any officer or employee who violates this Section is guilty of a Class 4 felony and in addition thereto any office held by such person so convicted shall become vacant and shall be so declared as part of the judgment of the court

Had the legislature intended for a highway commissioner to be disqualified who act in that capacity for willfully refusing to perform a mandatory duty and charged criminally for such violations, they would have placed such language in his statute, as they did for other public offices.

Some have tried to argue Gasser violated the first prong of the Official Misconduct statute.  That is an improper application of the law.  It’s the words in the OM statute that must be applied to the law being alleged as violated.

In the first prong of the OM statute, we find two words that must be applied. Intentionally and Recklessly.  There is no evidence that Gasser “intentionally” violated the bidding obligations.

As far as recklessly failed to perform, how many have done any legal research on the application of the word recklessly?  Blacks Law Dictionary defines “reckless” as “a term that means to be careless and indifferent to the welfare of other people.”  Another definition of the word used in the statute, “Recklessly” -“ without regard to the danger or the consequences of one’s actions; “

Not bidding salt that is used for a public purpose of which no one was injured and there was no personal gain that has been identified does not rise to the level of being a reckless violation of the law in our opinion.

It has been implied that prong #2 under the OM statue was violated.  Such allegations are completely false and those pointing to that matter fail to understand what it really means.

“Knowingly performs an act which he knows he is forbidden by law to perform.

What did Gasser do that he is forbidden by law to do?  And no, it’s not failing to bid.  Those who think it is don’t understand the proper application of the law.

There are laws that outline forbidden action.  When a person commits those forbidden actions, they could be subject to the 2^nd prong of the Official Misconduct statute.

For example:

(55 ILCS 5/3-14035)- Soliciting or delivering political contributions in public offices forbidden. No person shall in any room or building occupied for the discharge of official duties by any officer or employee in the classified civil service of said county, or named in Section 3-14022, solicit, orally or by written communication, deliver therein or in any other manner, or receive any contribution of money or other thing of value, for any party or political purpose whatever. …”

So if Gasser knowingly solicited political contributions in public offices, which is forbidden by law, he would have violated the OM statute for knowingly performing an act that the law forbids.

As far as prong, #3, If Gasser obtained a personal advantage for himself or another, then he has a problem.  To date, we have not heard any such allegation but if the investigation finds otherwise, then there may be grounds for a criminal charge.

We can only wonder why trustee Lawrence and others failed to apply the information provided by the McHenry County State’s Attorney in his final report on the Bob Miller investigation.

“As recent history in this County has demonstrated, politically-saturated prosecutions of public officials, represented publicly as airtight, can prove incredibly costly to the public and, after being subject to the intense scrutiny of an adequate criminal defense, disreputable upon being deemed unfounded.”

Of interest on that point is the fact no police agency would investigate Miller, yet now they are willing to investigate Gasser?  Politically-saturated?

“Accordingly, a State’s Attorney must only seek a criminal prosecution if he has a moral certainty that the suspect committed the criminal offense, has a moral certainty that admissible evidence will be sufficient to prove the offense beyond a reasonable doubt, and believes the decision to charge is in the public interest.”

“When determining whether the prosecution is in the public interest, the American Bar Association has recommended that a State’s Attorney consider, among other things:
1) the extent or absence of harm caused by the offense;
2) the impact of the prosecution or non-prosecution on the public welfare;
3) the criminal background and characteristics of the offender; and
4) whether the public’s interest in the matter might be appropriately vindicated by available civil, regulatory, administrative, or other private remedies.”

Before going further, apply 1-4 from above to this current investigation as we have done below.   

• Absent from Gasser’s not bidding is harm.  Without an identified harm caused by an offense, do you really move towards criminal prosecution? And for those that want to say paying $21.79 more a ton constitutes harm, you don’t understand the fact he is not bound to buying salt from a CMS contract price.  Yes, it would be the smart thing to do but not doing it does not mean his actions constituted harm under the criminal analysis. Without a mandate to buy from a single source, he is free to bid or use others bids as permitted and pay the bid price, no matter how much more it is from others making similar purchases.   
• The impact of prosecuting would be telling every public official they cannot make a mistake, otherwise, they will be criminally prosecuted. Non-prosecution has a positive impact on public welfare when there is no harm done to anyone and the mistake was self-corrected.  It sends the message, people are human and if they correct their screw ups they are not turned into felons. However, if such failures continue, the game changes in my opinion.
• I could find no criminal background and criminal character of Gasser and believe even the SA has said he doesn’t believe Gasser has a criminal bone in his body or something to that effect. 
• The public interest, compliance with the law, has already been addressed. If people feel it has not, they can file a mandamus action to force compliance with laws they feel are not being followed.   

More from the Kenneally report

“When making a charging decision, it is not enough to say that the prosecution itself, irrespective of outcome, is in the public interest in the sense that it “sends a message” to others who might consider similar conduct. It is not enough to say that the prosecution will help resolve unsettled legal issues. It is not enough to say, “charge him and let the jury decide.” An individual’s liberty and freedom cannot be sacrificed for the good of the whole when a prosecutor has a reasonable doubt as to guilt.”

And the one statement from State’s Attorney Patrick Kenneally which clearly can establish reasonable doubt, as if all the information above was not enough, is his closing comment on the Miller case.

“First, the statutory foundation upon which township government is built is deeply flawed. During the course of our investigation, we extensively reviewed the Township and Highway Codes and found them to be entirely unclear, self-contradictory, and interminable. We are skeptical that anyone involved, whether a highway commissioner, trustees, or electors, can reasonably acquire a straightforward understanding of their duties and responsibilities under these disjointed and sprawling statutes.”

With all the available information to date, it appears Gasser purchased salt without bidding and that purchase was audited and payment approved by the Township Board in 2017.  This year, he took delivery of salt for a public purpose and upon identification that it needed to be bid, he took steps to correct his mistake, put it out for bid, and has now awarded a valid contract.

I guess the only thing worse than not bidding salt for a public purpose would be giving it away to a private business three years in a row.  What did the State’s Attorney say about Bob Miller and him giving salt away three years in a row?

“While Miller’s actions might be deemed “unlawful” upon a mechanical application of the law, we believe his actions here are more oversight or indiscretion resulting from poor internal controls as opposed to self-serving public corruption wherein the People would have an interest in bearing the expense of a prolonged felony prosecution.”

“Further, the Township and/or Road District has an adequate civil remedy for any improper distribution of salt.”

In this case, the Road District has an adequate civil remedy for any improper ordering and use of salt for a public purpose.  Do it right from now on because future violations would surely be done knowingly, a key prong for criminal prosecution.

Take all this information into consideration and maybe then more people will understand how our laws are applied when it comes to declaring someone a criminal.

.