Shelby County – A Lesson In History – Thank You Tom Finks -Part II

Shelby Co. (ECWd) –

In part one of this two-part series, we pointed out the pitfalls to a State’s Attorney being present during county board meetings.  Below is a great history lesson which supports our position as well as exposes many of the past actions by Shelby County officials and their similarities to recent issues.

In 1996 Attorney Tom Finks was the State’s Attorney for Shelby County and rather than comply with the law and the rules the county board was holding him accountable to, he made demands on the county board during a meeting.  When the board voted to go into executive session, Finks became a witness to the crime, which was the board’s holding of an improper executive session.  That fact resulted in the court having to appoint a private attorney to represent the county board.  Had Finks not witnessed the crime, he could have defended the board in the case, saving taxpayer money spent on a private attorney who had to represent the board.

While Shelby County no longer has any records to expose the actual cost to the taxpayers for that appointment, we know from other similar events these appointed attorneys bill at their normal hourly rate and it results in thousands of dollars in expense.  What is so ironic about the chain of events that took place in 1996 is the fact many of the same problems have been replicated in recent years which indicates some people are not paying attention to history.

The court had to appoint an attorney, E. C. Eberspacher, to represent the board and other county officers because Finks’s presence during the meeting in question created a conflict.  How special is it to see even local attorney E.C. Eberspacher understood the county board could not hire their own attorney?  We mention this because of the past hiring of a private attorney by the county board.  While courts ruled that attorney had to be paid, they hid behind a rule 23 opinion on the matter which makes an appeal to the Supreme Court all but impossible as the high court does not waste their time on a nonbinding rule 23 opinion, let alone one that cited zero case law for its support.  The fact remains, the law did not allow the hiring of private counsel by the board, and a well-known local attorney knew that, just as we pointed out several years ago.

“He advised the board that they must ask the court to appoint a legal representative for them as the law would not allow them to get another attorney other than the State’s Attorney on their own.” (emphasis added)

Key points of history as referenced in the public records: (our input in bold after each point)

• State Attorney Finks was present during a meeting and witnessed the board violate the Open Meetings Act.  He becomes conflicted by his presence at the meeting.
• SA Finks pursued board action to instruct the Treasure to write a check to the SA Office for $20,000.00 – SA has no legal authority to be handling county funds
• SA Finks advised the board the executive session they held was illegal but failed to advise the board he was withdrawing his representation. –Potential violation of the rules of conduct.
• Finks, as SA, did not advise the County Clerk they were being sued by the Herald Review – If accurate, a violation of the rules of conduct for an attorney
• When the Clerk refused to provide the court-ordered record to Decatur Harold & Review he sought legal counsel from Finks, and Finks could not give any advice as he was conflicted, a Special State’s Attorney had to be appointed, yet Finks represented the clerk in the prior hearing without the clerk’s knowledge of being sued. – Failure to inform a client they are being sued appears to be a clear violation of the rules of conduct, especially when you represent them in a hearing where he is already conflicted on the matter.
• Chief Judge Mike Weber appointed E. C. Eberspacher to defend the county and its officials in these related matters. No such appointment would have been necessary had Finks not attended the county board meeting.
• SA Finks hired an employee who was not budgeted. –  Laws matter…………except to a select group in Shelby County.
• SA Finks had overspent his office budget – employees’ salaries by over 70%. – Again, laws matter except to a select group in Shelby County.
• SA Finks was seeking to spend grant funds not budgeted. Pretty bad when a lawyer doesn’t understand basic budget laws.
• SA Finks was attempting to use grant funds for purposes other than the intended purpose of the grant – the county board indicated they wanted no part in defrauding the state. Using Grant funds for purposes other than those intended is commonly called grant fraud yet the local mouthpiece for a few, Tom Finks, apparently had no issue with trying to use grant funds for unauthorized purposes while being the SA of Shelby County.
• SA Finks advised the media the county board was under criminal and civil investigation and sent a records hold request for a date no meeting occurred.  Admittedly conflicted yet still active involvement in the matter once again points to questionable conduct of a lawyer. 
• SA Finks allegedly asked the treasurer to set up a private checking account for him with a $10,000.00 grant check from the AG. – If true he should never be in public office again in our opinion.
• The county board was doing a semi-annual audit of expenditures and keeping a sharp eye on expenses- What a novel idea!  Accountability and oversite!
• SA office was not in compliance with the law regarding a Violent Crime Victims Coordinator for years. Finks was the SA so why was he not in compliance?
• The county minutes did not conform to the actual recording of the meeting.  Accurate minutes are a must and this is yet another example of why we urge all public bodies to video record every meeting.
• SA Finks resigned from office effective August 16, 1996, following the above events. – Under the circumstances that was a smart move in our opinion.
•  Appointed SA advised the board a unanimous vote was needed for going into future executive sessions. The Open Meetings Act does not require a unanimous vote nor has it ever to our knowledge. 
• The county chairman signed a letter admitting the board violated the Open Meetings Act. – I recall Nichole Kroncke, past SA for Shelby County being present for a few illegal meetings and in one case claiming there was no violation yet proven wrong in a binding opinion from the AG.  She also lost her attempt to provide cover for Teresa Boehm and Bryon Coffman for their OMA violation during a health insurance committee meeting. (Health Insurance Committee OMA violation, Kroncke Present).  She facilitated the violation in the health insurance committee by giving on-the-spot legal advice which was wrong.

The history outlined above and in the below documents are filled with lessons on what to do or not do.  The justification for the State’s Attorney to not attend county board meetings is not some hypothetical opinion unsupported by facts.  The history in Shelby County, thanks to Tom Finks, makes the case.

The current Shelby County Board majority has done a great job in their efforts to fix what is a very broken system.  We are confident knowledge of this history will help them continue to implement good policies that protect the taxpayers.

The records where the above information came from can be downloaded at this link or viewed below.