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July 22, 2024

Will-Grundy-Kendall ROEs Part 2: Problems With The 2017 Contract –

By John Kraft & Kirk Allen

On October 22, 2023

Grundy-Kendall Counties, Ill. (ECWd) –

This is part 2 in a series of articles on the Will County and Grundy-Kendall Counties Regional Offices of Education. Read the first article (here).

This article will discuss the following allegation: “From its inception, we believe the PDA and its contract with Vista Learning has violated Section 3 of the Public Officer Prohibited Activities Act and Article VIII, Section 1, of the Illinois Constitution, among others.

Vista Learning registered a Trademark for EvaluWise in 2013, which was four years prior to the contract between the PDA and Vista Learning. Incidentally, the 2013 Trademark application lists the physical address of Vista Learning as the same address as the government entity “Professional Development Alliance” which was created through an intergovernmental agreement between two regional Offices of Education. This Trademark was renewed by Vista Learning on October 1, 2023.

THE 2017 CONTRACT:

This contract subjugated the public body, PDA, to Vista Learning as a 1099 contractor for the private corporation.

This contract prioritizes the work for Vista Learning over the statutory work of the Regional Offices of Education (See Para V. (D.) of the contract).

The Professional Development Alliance (“PDA”), an agency and public body created through an intergovernmental agreement between the Will County ROE and the Grundy-Kendall County ROE, entered into a contract entitled “service agreement” with Vista Learning, a not-for-profit corporation that owns EvaluWise software.

We have found nothing in the Illinois School Code authorizing a Regional Office of Education to contract itself out to a private corporation. Since the statute is silent on such a power, there is no authorization, and it is prohibited (See Dillon’s Rule).

PROBLEMS WITH THE 2017 CONTRACT:

The 2017 contract allegedly violated the Public Officer Prohibited Activities Act (“POPAA”), in the following ways:

  • Sec. 3. Prohibited interest in contracts. “(a) No person holding any office, either by election or appointment under the laws or Constitution of this State, may be in any manner financially interested directly in his own name or indirectly in the name of any other person, association, trust, or corporation, in any contract or the performance of any work in the making or letting of which such officer may be called upon to act or vote. No such officer may represent, either as agent or otherwise, any person, association, trust, or corporation, with respect to any application or bid for any contract or work in regard to which such officer may be called upon to vote.”  There are limited exceptions to this paragraph, however, none of them apply to this specific PDA-Vista Learning issue.
    • Both ROEs (Shawn Walsh and Chris Mahochko), as voting members of the PDA, voted to enter into this contract or its amendments/extensions
    • Both ROEs, were also officers in the Vista Learning Corporation
    • Shawn Walsh signed the contract as President of Vista Learning, while he was also a Regional Superintendent
    • Jay Linksman signed the contract as Executive Director of the Professional Development Alliance while he was also an employee of the PDA
    • Both entities claimed the same physical address as the PDA, which is 2705 McDonough Street, Joliet, Illinois
    • Both ROEs (Walsh and Mahochko) and Linksman signed an amendment to the contract in 2019
    • Linksman as Vista Learning and two unknown signatories listed as PDA are on a 2022 amendment to the contract
    • Linksman as Vista Learning and two unknown signatories listed as PDA are on a 2023 amendment to the contract, just prior to Shawn Walsh, Will County ROE, vacating his office after losing the election

The 2017 contract allegedly violated the Illinois Automatic Contract Renewal Act:

  • The authority to enter into an automatic renewal (“evergreen”) contract was specifically withheld from the state and units of local government: Section 5: “”Parties” includes individuals and other legal entities, but does not include the federal government, this State or another state, or a unit of local government.”
  • Section 15 lists penalties for violations of this Act as an unlawful practice under the Consumer Fraud and Deceptive Business Practices Act.
  • This contract was a 60-day automatically renewing contract – which automatically renewed from 2017 through September of 2023

The 2017 contract could cause violations of the Local Records Act:

  • If Vista Learning demanded the PDA destroy records, and such records were destroyed on demand without prior approval of the Local or Downstate Records Commission, the PDA could be in violation of state law.

The 2017 contract allegedly violated Article VIII, Section 1 of the Illinois Constitution: “Public funds, property, or credit shall only be used for public purposes.”

  • This contract “lends” public funds and credit to Vista Learning by paying payroll, rent, utilities, etc., and obtaining reimbursement from Vista Learning at a later date
  • This contract permits Vista Learning to use public property for office space
  • This contract has government workers working on programming, development, and maintenance of software, websites, email, and applications for mobile devices, among other things for Vista Learning
  • This contract gives away the government’s work in its “works for hire” provision
  • This contract gives away the government’s work product and intellectual property

More articles are forthcoming…

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