McHenry Co. (ECWd) -
As the three-ring circus continues in Algonquin Township, a recent gotcha attempt appears to have backfired for the person raising the issues, but has resulted in positive steps for compliance with the law.
Each month for quite some time the Algonquin Township Trustees, particularly Trusteed Victor and Shea, have made a spectacle of themselves during the auditing of the Road Commissioner's bills.
The recent finger-pointing has opened a most interesting can of worms. Trustee Victor sent an inquiry to the Road District with several general ledger payments for different things the Road DIstrict has purchased.
"I am requesting the bidding information for the following items. See attached."
It appears Victor is of the mindset that since the multiple purchases from individual vendors total more than $20,000.00 for each vendor, they are required to be bid. Such a position is not only wrong, but it shows she does not understand the obligations of either the Highway Code or the Township code. Of interest in this attempt to once again find fault instead of fixing things, is the multiple faults identified to include those of Bob Miller, Andrew Gasser, the entire Board of Trustees, the Supervisor, and the attorney watching this all take place, meeting after meeting.
It all begins with an auto-renewing contract for Mosquito Abatement that Bob Miller entered into with Clark Environmental in 2015.
The first fault?
The Highway Code has no provision for a Road District to sign such a contract because mosquito abatement is not a power given to the Road District. Nor does a public body have the power to execute auto-renewing contracts as confirmed by Iroquois County State's Attorney when we exposed the issue in their county.
Automatic Contract Renewal Act (815 ILCS 601/5)
Sec. 5. Definition. In this Act:
"Contract" means a written agreement between 2 or more parties.
"Parties" include individuals and other legal entities, but do not include the federal government, this State or another state, a unit of local government, or a school district.
(Source: P.A. 91-674, eff. 6-1-00.)
Miller's improper actions is a perfect example as to why units of local government are not permitted to have such contracts. They go unchecked because they are signed and forgotten. People get voted out, new ones come in and so do the bills, which simply get passed to the board and they approve it because that is how we have always done it, and besides, everyone hates mosquitos so there can't be anything wrong with paying it (sarcasm).
This contract started at $19,020.88 for the first year, and now in 2018, has more than doubled in cost to the taxpayers. And yes, the Board approved the payments without question. Now, Trustee Victor added up the totals she approved for 2018, $39,029.38, and wants to now know why it was not bid.
How about, why did you approve bills for a service that is not a function of a Road District, or why is a Road District contracted to perform a function they have no power to perform?
Mosquito abatement bills come in and you have a new person in charge, in this case, Andrew Gasser. He gets told the bill is tied to a contract signed by Miller. He checks, yep, its true. So what does Gasser do? Submits the invoice for the Township to audit and pay. Gasser's first mistake is not knowing the restrictions of auto-renewing contracts. His second mistake, falling for the age-old trap of, this is what the Road District has always done in the past so surely it's ok, especially since the micro-managers of the current Township have never raised any issue with it since day one of his term in office.
He should have researched the statutes he is bound by and determined if a Road District has such power. They do not. So both Miller and Gasser were providing mosquito abatement without any statutory authority.
The Township Board has taken great steps towards finding anything possible that the Highway Commissioner might have done wrong, not for the purpose of fixing anything, but rather trying to force him out of office and or be prosecuted.
Watching the video of the meetings has become its own soap opera. No problem, accountability is great. However, in this case, they really missed the boat.
The board, past and present, has approved bills for Clark Environmental for years all while failing to realize they have a problem. First, they approved bills for the Road District that had nothing to do with Road District business. Secondly, the only authority for mosquito abatement in Townships comes from either the Board or the electors if the electors choose to create a taxing Mosquito Abatement District.
Victor wants answers on bidding for multiple purchases from Clark Environmental, Waste Management, Elgin Recycling, and Mid American for road repair materials. If Victor had any real understanding of the Highway Code she would know that of the items she wants info on, only Mid-American purchases would be subject to bidding.
The Highway Code is very specific and it appears, Highway Commissioner Gasser laid it out quite well in his response letter.
Gasser also points out the obligations of the Township as it relates to their bidding obligations, which are not the same as the Road District. He mentions phone service as a possible issue that may require bidding if it exceeds the Township bid threshold of $20,000.00. While we do not know the total expenditures of the phone service in Algonquin at this time, we have FOIA'd the contract for phone service and we suspect, as we have found in other places, the Township may well be involved with an auto-renewing contract. If so, they need to terminate it, just as Gasser did with the Mosquito Abatement contract. If the total service contract exceeds $20,000.00, they would need to bid it out.
Public Officials have to depend on their legal counsel to provide them sound legal advice. Simply asking a question to the attorney during a meeting is not sufficient as we have seen more than a few dozen times, the attorney simply advocates for the position of the client with their response, not expecting anyone to call them out on such advice. Such responses have been routinely proven wrong. Legal questions, in our opinion, need to be answered in writing to include statutes and case law to support the opinion. Anything less is nothing but lip service.
It appears all of the matters Victor brought to the table this time have all been taking place while James Kelly, the Township Attorney, sat silently during the very meetings where bills are being approved by his client for matters that have nothing to do with the entity that submitted them. Maybe it's time for a new attorney?
It appears fairly clear, Victor's attempts of finding fault on Gasser have backfired. In fact, it appears fairly clear her actions have exposed numerous failings, past and present, to include her failure as an auditor of the Road District.
As this feud between certain trustees and the highway commissioner appears to have no end in sight, it would do them all good to stay focused on their own obligations and duties before pursuing a fault finding mission that has no merit.
Our suggestion, fix what is wrong and move on. If the Township wants mosquito abatement, put it out for bid as the law requires. If the focus is going to be that of fault finding without ever focusing on the peoples business or your own failures, please resign.
While some seem to insist on focusing on criminal prosecutions, I suggest they read the Federal Pattern Jury instructions:
Federal Pattern Jury instructions – “ A person acts knowingly if he realizes what he is doing and is aware of the nature of his conduct, and does not act through ignorance, mistake, or accident. In deciding whether the defendant acted knowingly, you may consider all of the evidence, including what the defendant did or said.”
One thing we have come to know, most newly elected public official's improper actions are that of ignorance, mistake, and in some cases accident. The accident issue is of interest and I will close with an example.
The Highway Code outlines 4 items that require bidding. This is how the example was expressed to me:
"Except for professional services, when the cost of construction materials, supplies, new machinery or equipment exceeds $20,000,"
Did you catch it?
A person who read the actual law believed it to read as printed above. However, after discussion with them, I let them know they are overlooking a comma after the word construction.
The law actually reads:
Except for professional services, when the cost of construction, materials, supplies, new machinery or equipment exceeds $20,000, - (construction-comma-materials, thus not construction materials but rather construction or materials, independent of each other.)
So a person who failed to bid out construction made a mistake because he thought it said "construction materials" not construction or materials. Since he was not buying construction materials, he found no reason to bid out the actual construction. He made a mistake.
Stay tuned for Cruise-gate!