Shelby County Settles $850,000.00 Federal Lawsuit Without A Single Board Vote – Denied Request For Copy Of Settlement Agreement

Shelby Co., Ill. (ECWd) –

Nicholas Banning almost died while incarcerated at the Shelby County Jail during the term of former Sheriff Koonce.  We first exposed the lawsuit brought by Banning in this article.

We reported on the settlement of the lawsuit in this article that indicated we would publish a copy of the settlement “if and when it’s provided by the County”.

Our request to the State’s Attorney and the County Clerk for a copy of the settlement agreement resulted in more games, in our opinion.

• State’s Attorney Response:  “This office has no records responsive to your request.”
• County Clerk’s Response: “No records responsive to your request in the Shelby County Clerk’s office”

Why do we refer to this response as a game?  Because anyone who has taken their FOIA training knows that just because a record is not physically in their office does not mean the record does not exist or is not subject to FOIA.

Our response to both of the public officials, keep in mind one is the County Legal adviser to the other:

Ms. Woolery,

In an effort to avoid having to pursue litigation to obtain records subject to FOIA, specifically, 5 ILCS 5/140/2.20, I am requesting you obtain the settlement agreement that is in the possession of the entity performing a government function on behalf of the county and your office.  That would be the law firm hired to handle the Nicholas Banning case and possibly even the insurance provider.

Additionally, 5 ILCS 140/7(2) spells out why this record is a public record.  While I can appreciate you may not have a physical copy in your office, you are or should be aware of the location of the document, which is with a party with whom the county has contracted to perform a governmental function on behalf of the public body, and that directly relates to the governmental function and is not otherwise exempt under this Act.

A review of Rushton v. Department of Corrections, 2019 IL 124552 should make this pretty clear.

If you intend to ignore this request to obtain the public record please indicate such in a response.

I cc’d the County Clerk in this email as the request made was to both the county and your office.

Thanks

Kirk Allen
ECWd

The following day the State’s Attorney responded.

“Mr. Allen, I am requesting a copy of the settlement agreement and will review your request below and the applicability of Rushton once it is received.”

After not hearing anything back for 6 days, I sent yet another email to the State’s Attorney and CCd the County Clerk.

“Ms. Woolery, Would you please provide an update on the settlement agreement requested?”

After no response, I turned it over to my attorney, who sent the following communication to the State’s Attorney.

“Ms. Woolery:
My clients, which include Edgar County Watchdogs and their member organization / COGS — the Coalition Opposing Governmental Secrecy, intend to file suit on this next Friday if no response is received.
Consider this our final request.
Please call me if you have any questions.
Coach”

The State’s Attorney responded to our attorney:

“Your clients should have a response by the end of the day.”

The following day, I received a copy of the Settlement Agreement.  Was that because she reviewed the case law and agreed she was obligated to obtain a copy and provide it, or did she provide it because of a threat of another FOIA lawsuit?

The agreement names the parties, which includes Shelby County.   While we fully understand the insurance company is the driving force in these types of cases, this is the first time we have come across an actual settlement being executed without a single vote of the governing board.

The agreement indicates $850,000.00 is the figure it took to make this case go away.  While we agree that settling this case was the best move, the way it was done, in secret from at least some of the board and zero public discussion or vote, let’s just say, is less than transparent. Then, to top it off with claims that there are no records in their ‘office‘ is another example of how public officials fail in the performance of their duties.

Was it really necessary for us to have to educate the State’s Attorney on her obligation to obtain the agreement from the very entity performing a government function on her behalf?

With yet another insurance payout for Shelby County, we can only wonder if the insurance provider will choose to drop them.

We note that Shelby County is one of 62 counties now being sued in federal court, thanks to the State of Illinois failing to address the illegal property tax sale laws in the state. Illinois is the only state in the United States that failed to correct the law after the Supreme Court’s ruling on property tax sales and seizures of property 2 years ago. More on that new lawsuit in another article.

A copy of the Nicholas Banning settlement agreement can be viewed below or downloaded at this link.