McHenry Co. (ECWd) -
We encourage everyone to read the first article in this series at this link.
As we continue to compare the McHenry County State's Attorney's Final Report on the criminal investigation of Algonquin Township Road District's former Highway Commissioner Bob Miller, and the answers provided in Miller's interrogatory, we find glaring omissions of critical information to include conflicts in the information provided.
As part of the laundry list of criminal allegations in which the State's Attorney investigated, one, in particular, was the use of public funds for family and children to join the public employee at a conferance. We will go through both the final report and the interrogatory answer to questions on this matter.
From the Final Report:
Before we debunk parts of the report, facts are things that are what they are. Just saying something that is not validated with supporting information does not make it a fact.
Page 47: A. "Summary of the Facts"
"Township financial records reveal that in July of 2008, two plane tickets to New Orleans were purchased on the Road District credit card." That is a fact but omits that Township Road District financial records also reveal this information.
"The names on these tickets are Rebecca Lee and what is believed to be her child." That is a fact.
"It should be noted that Lee is the daughter of Miller and wife of Road District employee Derek Lee." That is a fact.
"These plane tickets were approved by the Trustees." That is NOT a fact but rather a total fabrication.
The Trustees of a Township have no power to "approve" a purchase already made, nor is it even possible to approve the transaction that was already approved and the goods provided. Their job is to audit bills before them and validate that the funds are in the budget so those bills get paid. Those bills are for purchases already made by the Road District. If there are no funds for the purchase that was made then they simply vote to not authorize the payment of the bill, but it does not void the purchase already made by the Road District. Only the Road District highway commissioner approves purchases made on behalf of the Road District.
There are no minutes supporting the board of trustees ever "approved" the "plane tickets" as claimed, nor are there any minutes that reflect the board of trustees approved the purchase. That being the facts in this matter, we can only wonder where on earth the investigation came up with this information as it simply is not true, even though the report implies it as a fact. Whoever claimed these tickets were approved by the trustees and put this in the report should immediately enroll in a first-level criminal justice class to learn what a fact is.
The facts of this matter is the purchase was approved by the credit card company the second the tickets were purchased on the Road District credit card. Who used that card to make that purchase? The report makes no findings of who it was but we know Bob Miller is responsible for the credit card. The only involvement the trustees had was in auditing a credit card bill put before them, an expenditure which was already made and approved by the Road District official who submitted the bill for audit and payment, provided funds were in the budget.
Page 47: "Lutzow indicated that in the past, the Township would pay for the plane tickets of family members to accompany employees during travel to work related conferences. Whether these plane tickets were so Rebecca Lee could accompany Derek Lee on a work-related trip is unknown."
Considering Lutzow, the current Township Supervisor, is not a member of the Road District nor was at the time of the alleged crime, what does his input have to do with what the Township did in the past? This is a Road District matter so the focus should be on the ones in the Road District that controlled the money and approved the purchases, which again is not anyone in the Township.
All Lutzow did is admit that others used public funds for non-public purposes, whicht in most taxpayers' eyes is a violation of the law, not to mention a violation of Article VIII Section I of the Illinois State Constitution. His response should have opened up a whole new investigation to determine how many others were violating our laws.
All too often we find irrelevant information in reports that only add to the misinformation being presented, and while people will focus on what is included in a report, it's what is not included that many times will tell the more important story. We believe the latter is the case as it relates to this issue.
Page 47: B. Relevant Laws
Misapplication of Funds, 720 ILCS 5/33E-16. See section I.- NOT relevant because it is past the statute of limitations!
Official Misconduct, 720 ILCS 5/33-3 See section I.
Theft, 720 ILCS 5/16-1 See section I.
What's missing? Is it possibly the most important law of all in this matter?
Why is there no reference to the applicable State Constitution Article VIII as a relevant law?
SECTION 1. GENERAL PROVISIONS
(a) Public funds, property or credit shall be used only for public purposes.
Was there any public purpose for these plane tickets for the family?
Page 48: C. Discussion
"We are hardpressed to recognize any public benefit derived from using taxpayer money to purchase plane tickets for family members of public employees. However, this matter was not pursued further as, even if the spending amounts to a criminal offense, it is beyond the statute of limitations."
How odd to find an admission from the report that there was no public benefit derived yet no mention of how that would apply to our State Constitution. Odd because that section of the Constitution is used in other parts of the report. Was it just an oversight that the foundation of our laws on how public funds are used was overlooked in this particular alleged crime or was this omission intentional?
"if the spending amounts to a criminal offense"?
One would think a determination on such spending being a criminal offense would be done before further resources are expended in investigating a case. The fact they avoided confirming this spending was a criminal offense on its face is most telling. We challenge them to show us any law, policy, or case law which points to spending public funds for family and grandkids to join them on public business as being legal.
Two key points in the above statement.
- They recognize there was no public benefit derived from the purchase of plane tickets for the family but ignored the applicable State Constitution.
- They claim it is beyond the statute of limitations - We say False and will explain why their own report proves it to be false.
Page 48 - We are aware that under 720 ILCS 5/3-7, the period that “the defendant is a public officer and the offense charged is theft of public funds while in public office” is excluded from the limitations period.
"Is excluded from the limitations period"!
While one paragraph claims the matter is beyond the statute of limitations, another directly conflicts with that by citing the very statute that provides key exemptions to those limitations. Additionally, what is cited in that paragraph is only 1 of the prongs in the cited exemption and we find it very odd that they failed to mention the other one.
Page 48: C. Discussion
"We are aware that under 720 ILCS 5/3-7, the period that “the defendant is a public officer and the offense charged is theft of public funds while in public office” is excluded from the limitations period. However, we do not believe that theft is the appropriate charge. In particular, we do not believe we can prove beyond a reasonable doubt Miller or anyone else that authorized the purchase of the plane tickets “knowingly” “exerted unauthorized control” over public funds. Rather, the purchase was explicitly authorized and approved by the Township Board."
Yes, there is a statute that tolls the statute of limitations for a public officer who is charged with the offense of theft of public funds. The report points to their inability to prove beyond a reasonable doubt that Miller or anyone else that authorized the purchase of the plane tickets knowingly exerted unauthorized control over public funds.
Why was the whole citation not quoted but rather only the "exerted unauthorized control" portion? You see there are two prongs to that citation and a glaring omission in the report is the first word in that citation, "Obtains".
720 ILCS 5/16-1 Theft
(a) A person commits theft when he or she knowingly:
(1) Obtains or exerts unauthorized control over property of the owner;
The way to easily understand that law is to break it out into two sentences.
- A person commits theft when he or she knowingly obtains control over property of the owner.
- A person commits theft when he or she knowingly exerts unauthorized control over property of the owner.
The person making an illegal purchase with public funds is the one subject to obtaining and exerting unauthorized control over the property and while this whole report appears to be an exoneration document of Bob Miller, it completely failed to even identify who made the purchase in the first place.
Part of the justification for believing they could not prove the case beyond a reasonable doubt is because "the purchase was explicitly authorized and approved by the Township Board."
Now if that were actually true, that the board did as was claimed, I would agree. However, there is zero evidence that the purchase of these tickets for a family was "explicitly authorized and approved by the Township Board". We challenge anyone to provide such evidence to support what was claimed in this report on that point.
Assuming Bob Miller is the person in control of the credit card, he would be the one who made/authorized the purchase. The proper analysis comes down to the application of the key provision in the Theft statute, "knowingly". In simpler terms, did Bob Miller commit theft by knowingly obtaining or exerting unauthorized control over property of the owner? For those that may be confused, the owner is the Road District and the property is the funds and credit used to make the purchase of plane tickets. Public officials are only authorized to use public funds, property, and credit for a public purpose. The report was clear, there was no public purpose and there is no provision in the law that gives permission for funds to be used as they were in this case.
How is the term "knowingly" applied in 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.”
Note that it does not point to knowing his conduct is a crime but rather that the person knows what he is doing and is aware of the "nature" of his conduct.
Begin the "knowingly" analysis with the fact the person in question invoked his 5th amendment rights according to the State's Attorney and has said nothing. Then look at the evidence. Plane tickets purchased with public credit for family members that serve no public purpose, the purchase of the very tickets in question approved by the person in question, purchased with a credit card he controlled, and then presented a bill for audit and payment. The presentation of that bill is the approval, not the audit and paying of it. A bill is only audited and paid by the Trustees of the Township, not approved by them.
We find it hard to imagine how even a first-year prosecutor could not prove beyond a reasonable doubt that public funds and or credit were used for a personal family benefit that had no public purpose. We also believe that the same first-year prosecutor could make the case that a 40 plus year public sector employee/official knows they can't use public funds for items not approved by statute, especially when there is no public purpose tied to that purchase. Considering this person's long history in the public sector and the fact he was also the former President of the Township Association that trains people in Townships on how to operate their local government within the confines of the law, we find any reliance on an inability to prove this case because of a concern of reasonable doubt is nothing but an excuse to not prosecute.
With all the above information in mind, let's look at what Bob Miller says in his interrogatory.
15. Identify any public purpose associated with paying the airfare of any of your grandchildren or any other family members within three degrees of Consanguinity, meaning children, grandchildren, parents or grandparents.
The township and road district policies in force at the time allowed an employee to transport his family including spouse and children to conferences, conventions or meeting on behalf of the township. The New Orleans trip was for an American Public Works Association convention. Derek Lee who was an employee of the Road District brought his wife and child with him. At that time Derek Lee and Mickey Barnas were both foreman at the road district, they both attended with spouse and or children.
Note the glaring omission of any identification of a public purpose associated with the plane ticket purchase which is what was asked for.
Note that the entire criminal investigation Final Report on this matter makes no mention of any policy in force that would allow such an action.
Rather than actually answer the question, the response is crafted to create a justification for what happened. Unfortunate for Miller, there is no evidence what so ever that there was a policy in force at the time, or any time, that permitted public funds to be used for a personal family benefit that had no public purpose. More importantly, if there was such a policy, it carries no weight in law because you can't have policies that violate the law.
Also, note that the claim is the policy allowed an employee to "transport" his family to these meetings on behalf of the Township. What an interesting word to use. In this case, the employee did not "transport" any member of their family, but rather the airline company transported them. Sure, Derek Lee "brought" his wife and kid with him but he was not the one who transported them. When answers get crafted in such a fashion it points to them knowing they have a problem.
James Kelly was the attorney for the Road District during the time of this purchase and claimed in his opinion on sick days that "In 1995 the Road District Policy changed and eliminated the accrual/banking of sick leave going forward." (see page 2 of opinion). To date, nobody has been able to produce any such policy and if we are to believe it existed as claimed by an attorney and Miller in his sworn interrogatory, is it a stretch to assume this attorney would have helped in its drafting and review? If so, does that mean Kelly condoned drafting a policy that permitted public funds to be used for non-public purposes, family travel for employees of the Road District?
While we don't think Kelly is the brightest bulb in the socket, we don't believe he would be this dull.
We stand by the position there is no such policy as Miller claimed and that is based on the Township and Road District's inability to produce any such policy. While we believe the investigation and Final Report lacks the real scrutiny, it too makes no mention of any such policy in place.
Stay tuned for more exposure of ineptness in McHenry County.