Shelby County - (ECWd) -
On June 14, 2020, the Chief Judge of the Circuit, Judge Kimberly G. Koester issued her order in the matter of the Treasurer seeking legal counsel.
"STATUTORILY, THE STATE'S ATTORNEY IS THE REPRESENTATIVE OF THE OFFICE HOLDERS OF EACH COUNTY AND THEREFORE THIS COURT REQUIRES THE STATE'S ATTORNEY TO FILE AN AFFIDAVIT AS TO WHETHER OR NOT SHE HAS A DIRECT CONFLICT WITH REPRESENTING THE DEF. TREASURER BEFORE THIS COURT WILL ASSIGN OTHER COUNSEL. IF SAID AFFIDAVIT IS FILED AND APPROVED BY THIS COURT, THE COURT WILL APPOINT ALTERNATIVE COUNSEL PURSUANT TO STATUTE. STATE'S ATTORNEY TO FILE SAID AFFIDAVIT WITHIN 7 DAYS OF THIS ENTRY.
Last month the Shelby County Treasurer filed an affidavit in support of a request to the Court to have legal counsel appointed to her since the Shelby County State's attorney admitted to being conflicted. (article here). We note it is not the job of a County Treasurer to ask the courts for such an action, but is within the statutory authority to do so when the State's Attorney has failed to do her job. In this case, the State's Attorney has not even answered the complaint filed by Ed Flynn months ago, let alone filed the appropriate request for legal counsel for the Treasurer after it was confirmed she was conflicted due to representing the interest of the County Board.
The law is crystal clear on who is to represent county officers and what the process is when there is a conflict. We have written about it extensively over the years. The law covering that process of appointing an attorney when the State's Attorney is unable to perform her duties due to conflict is found here.
It will be most telling to see what the State's Attorney says in the Affidavit she has been ordered to file. Telling because she has already provided an Affidavit for Ed Flynn who used it to support his motion for Summary Judgement against the county. If that is not a direct conflict I don't know what is. Within her affidavit, she confirms if called as a witness she could testify to certain facts. Such an affidavit makes her a fact witness, which makes her conflicted across the board.
At some point, the county officials must get the proper legal representation that is not conflicted or colluding with the very person suing the county. If the State's Attorney is honest in her affidavit to the court, we should see the Judge appoint counsel for not only the Treasurer but the county board as well at some point.
What is going to be interesting is seeing how the State's Attorney resolves the statements in her affidavit for Ed Flynn with her own email to the Treasurer.
Affidavit: "That pursuant to Section 4-2003 of the Illinois County Code, the undersigned states that she appointed Edward F. Flynn and the law firm of Featherstun, Gaumer, Stocks, Flynn & Eck, LLP to act as Special Assistant State's Attomeys for the purpose of this labor arbitration and for all of the work performed by this Jaw firm since 2014 when Edward F. Flynn and the law firm of Featherstun, Gaumer, Stocks, Flynn & Eck, LLP was originally hired to perform the services for Shelby County"
Email:"Keith suggested the possibility of filing an MR case and asking the court for a retroactive order allowing Ed to serve as a special assistant state's attorney from the end of the 2014 resolution onward. If the court were to grant that request and enter that order, would you then be willing to pay Ed?"
If under oath of perjury the State's Attorney claims she appointed Ed Flynn and his firm to act as special Assistant State's Attorneys for all the work performed since 2014, why would they be looking at filing an MR (miscellaneous remedy) case to ask the court to retroactively order allowing Ed to service in that capacity from the end of the 2014 resolution onward? Is the email information not an admission he was never appointed after the 2014 resolution? If so, does that mean she lied in her affidavit? These are key questions that will get answered in depositions as this case goes forward.
The Shelby County State's Attorney has admitted, under oath of perjury, to making an appointment of an attorney and law firm to act as Special Assistant State's Attorney since 2014. The law allowing such power of appointment was not even in existence until January of 2019. Such an appointment, as sworn to, is an exercise of power never granted and should be found void ab initio if it actually ever happened. If it has not happened as the paper trail confirms to date, she should be investigated for criminal perjury and reported to the ARDC.
We will update you with a new article next week once the affidavit is filed.