McHenry Co. (ECWd) -
The Algonquin Township Clerk, through her attorney, has filed her Amended Counter Claim.
While it will be most interesting to see the response to this filing, there are some rather glaring conflicts and issues that raise even more questions.
For example, the Missing RD-T Cabinet files...........that she confirms are not missing because she states she observed them in a file drawer in an area occupied by a Lutzow employee. See item 13 in the amended counterclaim. If she observed the claimed missing files then one would think they are not missing? It appears her complaint on that matter is not about any files actually missing but rather they had been moved.
She claims there are missing records, specifically, 2008-2010 invoice files from the Town fund and the Road and Bridge. We are not sure why this would have anything to do with Andrew Gasser, the Highway Commissioner, as those records were under the control of Charles Lutzow as the prior Clerk. If they are missing, Lutzow has some explaining to do!
Item #20 claims Lukasik found unsecured Township records in the trash. We have asked for copies of those records so we can find out what was being thrown away. Glad she found them as now they should be secure and available under FOIA.
Item #21 is connected to a criminal complaint by Lukasik that the authorities have closed the investigation with no action to be taken. After reviewing the videos of the claimed event, its no wonder the case was closed. She points to a witness to support the allegation but there is no affidavit from the witness. Considering the dumpsters have long since been emptied and the authorities closed the case, we are not sure why this is being raised again.
Item #35 is of interest as she now admits to having timesheets for Anna May. We were denied those records.
Item #38 claims the video of Lukasik and and her friend is being withheld. Let's solve that problem. She can go to this link and download it. But wait, they already know where that video is at and have spent money on an attorney fighting to have it removed from YouTube (and losing). Are we to believe all the fighting over this video and she has yet to actually secure a copy of the video?
Item #42 discloses that Lukasik was not able to fulfill a legal mandate to produce certain records. The legal mandate would be the subpoena recieved and of interest is her attorney taking the position this underling legal mandate (subpoena) is prohibited from disclosure. That representation is not true as even the State's Attorney advised Lukasik and James Kelly that subpoenas are subject to FOIA and provided them case law on the matter. We can only assume McArdle didn't get that email.
While we totally agree Lukasik should have control of the records, she can not expect such control to a point that hinders other elected officials from doing their mandatory duties. This is explained quite well in Ebert v. Thompson (See page 26). While the case involves a trustee trying to gain access to records rather than a clerk, the principle applies to all elected officials.
"As such, the elected public officials are entitled to reasonable access to the books and records necessary to perform that function. That reasonable access cannot be doled out by the spoonful"
There are going to be times when certain documents come into the hands of the Road District and Township to perform their duty. I suspect a lot of these claims of no access is more about control than the actual functionality of the Township. It's easy to say I am in total control of all records and they are under lock and key and no one can access them but through me. If that is the position then it is clear the Judge is going to have to be the adult in the room and explain that is not how things work.
Item #51 is one of those double-take matters. Had to read it again and then say, huh?
"If all Township records are not inventoried and secured by Lukasik, they could be altered, tampered with, lost or destroyed, causing Lukasik and the public to suffer irreparable harm, as it will be impossible to identify who took the records and what, if any, records may have been copied before records were removed."
Hey Sherlock, even with an inventory and all records secured by Lukasik, they can still be altered, tampered with, lost, or destroyed. Let's not forget this is the same woman who brought nonpublic officials onto the premises and allowed them access to records of which she was in charge of.
Item #53 - "will be available upon request to Lukasik." Now that is a whopper. Considering Lukasik is hardly ever at the Township how is it that these records under her lock and key are going to be available upon request? Again, it appears to be time for an adult in the room to make everyone understand there are going to be times when records are needed and the Clerk is not there. I do not believe the courts are going to tie the hands of the other elected officials to a point where they have to request each and every document they need to do their job on a daily basis. If it comes to that then she needs to be at the Township during business hours every day.
Looking at the request for relief, this all appears to point to Lutzow as he is the one with the control of all the matters raised in this amended complaint, other than access to Gasser's office which she has no business in.
One question we have for Charles Lutzow is, why are any records missing? As the prior Clerk he should be able to answer under oath where the missing records are at, assuming there are actual records missing. You see, now in this pleading, we have a new position on that point. Lukasik had told the authorities that she did not believe any records were missing in her police complaint yet now they claim there are years of records missing. We covered her criminal complaint on records in this article. So which is it, you believe records are not missing, or you know they are missing?
We will update with a new article when opposing parties file their response which more than likely is going to be a motion to dismiss.
You can view a copy below or download a copy at this link.