From McHenry County State’s Attorney Patrick Kenneally. (My apologies for the lack of proper formatting, but this is what happened when I copied an pasted the 52-page report.) Kenneally invites members of the public to call him at (815) 334-4159.
THE MCHENRY COUNTY STATE’S ATTORNEY’S REPORT REGARDING ALLEGATIONS OF CRIMINAL CONDUCT ON THE PART OF ROBERT MILLER, FORMER HIGHWAY COMMISSIONER AT THE ALGONQUIN TOWNSHIP ROAD DISTRICT
This report is meant to inform the public of the basis upon which the
McHenry County State’s Attorney’s Office declined to prosecute Robert Miller,
former Highway Commissioner at the Algonquin Township Road District, after
investigating various allegations of public corruption and misuse of public funds.
Generally speaking, a State’s Attorney does not investigate criminal
allegations. Rather, the primary function of the State’s Attorney is “[t]o commence
and prosecute all actions, suits, indictments, and prosecutions, civil and criminal, in
the circuit court for his county, in which the people of the State or County may be
concerned.” While a State’s Attorney does have the authority to investigate
criminal matters, this authority is limited in that the State’s Attorney must
ordinarily rely on police agencies to conduct criminal investigations. As stated by
the Illinois Supreme Court:
[A State’s Attorney’s] duty to investigate is not exclusive and
necessarily involves him with other investigative agencies. Justice is
not served when the State’s Attorney’s duty to investigate collides
with the duty of the police to investigate. The State’s Attorney does
not possess the technical facilities nor the manpower that the police
have. Consequently, it is the recognized practice that the State’s
Attorney sensibly defers to the investigative duties of the police.
As such, the Illinois Supreme Court permits the State’s Attorney to investigate
criminal matters only “where other law enforcement agencies inadequately deal
with such investigation or where a law enforcement agency asks the State’s
Attorney for assistance.”
In this case, the two law enforcement agencies with jurisdiction to investigate
Miller were the McHenry County Sheriff’s Office and the Illinois State Police. Both
declined to investigate and tendered the investigation to the State’s Attorney’s
Office. It is important to understand how taxing this investigation has been on the
resources of our Office as it is neither staffed nor resourced to conduct such an
expansive investigation. We employ lawyers, not detectives. Our Office has only
one full-time investigator who is a sworn peace officer and has experience
conducting criminal investigations.
The investigation required us to consider a convulsion of indiscriminate
allegations that, regrettably, first surfaced in the press. In order to thoroughly
examine these allegations, we issued dozens of subpoenas, reviewed over 10,000
emails, analyzed thousands of pages of financial and Township documents, and
conducted dozens of interviews. After devoting nearly seven months and hundreds
of man-hours, we regard our investigation as complete and thorough.
It must be said that our investigation was undermined by the public nature
of the allegations. An element of candor was lost when interviewing witnesses who
had time to prepare their responses to anticipated questions, as opposed to
answering extemporaneously. Moreover, a number of witnesses refused to speak
with us as they did not want to involve themselves in the evolving spectacle.
It must be said further that this Office has faced pressure from members of
opposing political factions to variously charge Miller or exonerate Miller, hasten the
investigation or abandon the investigation, retain the investigation in house or refer
the investigation to another entity. Particularly troubling were those voices that,
not having access to all information and being politically opposed to Miller,
stridently urged our Office to put a man’s liberty in jeopardy.
All of this betrays a fundamental misunderstanding of the State’s Attorney’s
Office and its function. The United States Supreme Court has defined the role of
the prosecutor as follows:
The [government attorney] is the representative not of an ordinary
party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a
peculiar and very definite sense the servant of the law, the twofold
aim of which is that guilt shall not escape or innocence suffer. He
may prosecute with earnestness and vigor — indeed, he should do so.
But, while he may strike hard blows, he is not at liberty to strike foul
ones. It is as much his duty to refrain from improper methods
calculated to produce a wrongful conviction as it is to use every
legitimate means to bring about a just one.
United State Supreme Court Justice Robert Jackson, pondering the question of
what makes a good prosecutor, observed further:
The qualities of a good prosecutor are as elusive and as impossible to
define as those which make a gentleman. And those who need to be
told would not understand it anyway. A sensitiveness to fair play and
sportsmanship is perhaps the best protection against the abuse of
power, and the citizens’ safety lies in the prosecutor who tempers zeal
with human kindness, who seeks truth and not victims, who serves
the law and not factional purposes and who approaches his task with
As recent history in this County has demonstrated, politically-saturated
prosecutions of public officials, represented publicly as airtight, can prove incredibly
costly to the public and, after being subject to the intense scrutiny of an adequate
criminal defense, disreputable upon being deemed unfounded.
It is essential that the duty to “seek justice” is first and rigorously applied at
the time a State’s Attorney is making a charging decision. This is especially true
when considering criminal allegations against the infamous or unpopular.
Criminal prosecutions, which bring to bear the incredible power of the State
directly down upon an individual, can have enormous financial, health, and social
consequences for that individual. Accordingly, a State’s Attorney must only seek a
criminal prosecution if he has a moral certainty that the suspect committed the
criminal offense, has a moral certainty that admissible evidence will be sufficient to
prove the offense beyond a reasonable doubt, and believes the decision to charge is
in the public interest.
When determining whether the prosecution is in the public interest, the
American Bar Association has recommended that a State’s Attorney consider,
among other things:
1) the extent or absence of harm caused by the offense;
2) the impact of the prosecution or non-prosecution on the public welfare;
3) the criminal background and characteristics of the offender; and
4) whether the public’s interest in the matter might be appropriately vindicated
by available civil, regulatory, administrative, or other private remedies.
When making a charging decision, it is not enough to say that the
prosecution itself, irrespective of outcome, is in the public interest in the sense that
it “sends a message” to others who might consider similar conduct. It is not enough
say that the prosecution will help resolve unsettled legal issues. It is not enough to
say, “charge him and let the jury decide.” An individual’s liberty and freedom
cannot be sacrificed for the good of the whole when a prosecutor has a reasonable
doubt as to guilt.
A State’s Attorney can neither be swayed by the logic that the sheer number
allegations of wrongdoing against a suspect evidences criminal conduct. Perhaps
not without significance, many witnesses we spoke with leveled a number of
accusations of criminal conduct against the current Highway Commissioner, which
have not been subject to the same media scrutiny. That notwithstanding, in
criminal cases, with the exception of charges involving sexual abuse and domestic
violence, a person’s dishonorable character, prior criminal history, or prior “bad”
conduct is not admissible evidence. Rather, the inquiry focuses solely on the
sufficiency of evidence related to the specific criminal act charged. Each allegation,
therefore, must be evaluated on its own merits and the combined persuasive force of
a number of allegations, which individually do not arise to proof beyond a
reasonable doubt or otherwise merit prosecution, is irrelevant.
Proof beyond a reasonable doubt is no small hurdle. Everyone charged with
a crime is presumed to be innocent of the charges against him. This presumption
remains with him throughout every stage of the trial and during a jury’s deliberations
on the verdict and is not overcome unless the jury is convinced beyond a reasonable
doubt from all the evidence that he is guilty. It is the State’s burden of proving a
defendant guilty beyond a reasonable doubt and the defendant is not required to prove
his innocence nor offer any evidence in his defense.
Generally, a public official accused of improper spending is compelled to answer
for and justify the spending in the public arena. In a criminal court of law, he need
not. Rather, it is the burden of the State to prove that a specific form of spending was
improper and/or solely in furtherance of a private interest such that it could have no
other reasonable explanation. Further complicating this task is the Fifth Amendment
right against self-incrimination. This is especially true in cases where the one person
responsible and presumably apprised of the thousands of expenses paid over the
course of many years is under suspicion and asserts that right, as Miller did in this
We recognize the special danger and insidious nature of crimes committed by
public officials. Not only does public corruption fundamentally threaten core
principles of a democratic system, it diminishes the quality of government service,
fosters a lack of respect for our shared institutions, limits private investment and
economic growth, and wastes taxpayers’ hard-earned money. Prosecuting cases of
public corruption is one of our top priorities. However, the heightened public injury
that results from public corruption does not allow a State’s Attorney to dilute his
standards when making charging decisions any more than he can moderate his
approach when charging a murder as opposed to a petty theft.
The FBI also investigated the Algonquin Township Road District’s credit card
use and spending on the Amazon website. Upon presenting its findings to the
United States Attorney’s Office, charges were declined. After conducting this
investigation, we tendered the prosecution to the Illinois Attorney General’s Office.
We felt it was important that another agency review our investigation and
determine independently whether it was appropriate to charge under State law
and, if so, assume the prosecution. Important in the sense that members of our
Office variously serving as prosecuting attorneys and appearing as witnesses may
create the appearance of a conflict of interest. After its nearly three-month review,
the Illinois Attorney General’s Office, acting as special prosecutor, declined charges.
Despite this and the difficult position of serving as both investigator and prosecutor,
we still arguably retain authority to prosecute should we choose.
We also decline to prosecute Miller at this time for the reasons discussed
herein. New allegations, however, seem to be surfacing regularly. Our
investigation into these new matters will continue. That said, we believe now, as
we did when we voluntarily undertook this investigation that an explanation to the
public is owed. The foregoing is an attempt to provide that explanation on our work
to date. It is important to note that our decision not to prosecute is not a
declaration of Miller’s innocence or any assessment of his aptitude as Highway
Commissioner or virtue while serving in that role. Rather, we determined, mostly,
that there is insufficient evidence to establish beyond a reasonable doubt that
Miller committed a criminal offense.
Should any member of the public wish to discuss this matter further, please
contact me at (815) 334-4159.
McHenry County State’s Attorney
I. Allegation: Miller improperly spent Road District money for private
A. Summary of the Facts
In the Fall of 2017 after various allegations surfaced that Miller misused the
Road District’s credit card and otherwise misspent Road District money, we
contacted the FBI. The FBI agreed to review Road District spending between 2012
and 2017. In April of 2018, the FBI informed us that it had completed its analysis
and did not believe that Miller’s questionable spending constituted a criminal
offense. Pursuant to a court order, the FBI shared its analysis with the Illinois
Thereafter, we similarly reviewed all Road District spending between 2012
and 2017. Our investigator itemized all questionable spending for those years in
her reports. Some examples of significant or pronounced forms of questionable
spending worthy of further discussion include:
$582.43 at Chris’s Coach House (Cary), December 2012. The total bill
was $1,749.29. It was divided three ways, with the Road District,
Supervisor’s Office, and Assessors Office each paying $582.43,
respectively. The bill was submitted in January, but the timing of the
charge would suggest that the costs were incurred as part of a holiday
$337.66 at Cheseapeake Seafood House (Springfield), November 9,
$141.66 at Jameson’s Charhouse (Crystal Lake), November 17, 2015
2. Recurring Annual Charges at the Brunch Cafe and Hooters
$176.38 at Brunch Cafe and $324.89 at Hooters in Wisconsin,
$183.07 at Brunch Café and $272.27 at Hooters, January, 2014
$116.14 at Brunch Café and $202. 65 at Hooters, May, 2015
$188.14 at Brunch Café and $288.62 at Hooters, January, 2016
3. Recurring Charges for Women’s Clothing
$164.64 at J. Jill Catalog, February, 2012
$110.77 at Lands End, February 2013
$249.62 at Lands End, May 2013
$348.23 at Land’s End, October, 2014
$190.19 at Prana Living, November, 2016
4. Recurring Charges for Levenger Bags
$111.57 at Levenger, “I-Pad Carry Case,” January, 2013
$211.44 at Levenger, “Brown Brief Bag,” July, 2014
$384.52 at Levenger, “grape/black” bag, November, 2014
$263.55 at Levenger, bag, June, 2016
5. Restaurant Charges For Election Events
$550 at Kojak’s Restaurant (Cary), May, 2012 (the total bill was $1,100
and was divided between the Road District and Township)
$550 at Brunch Cafe, February, 2013 (the total bill was $1,100 and
was divided between the Road District and Township)
$550 at Brunch Cafe, December, 2014 (note with bill says for election
judges) (the total bill was $1,100, it was divided between the Road
District and Township).
$500 at Domino’s Pizza, March, 2014 (the total bill was $1,000 and was
divided between the Road District and Township)
$500 at Brunch Café, April, 2015 (the total bill was $1,000 and was
divided between the Road District and Township)
$550 at Bruch Café, March 18, 2016 (the total bill was $1,100 and was
divided between the Road District and Township)
6. Charges That Were Repaid
$625.43 at Rushing Waters Fishery, March, 2012 (this purchase was
made on the Road District credit card and submitted with the request
for payment was a check from the McHenry County Highway
Commissioners for the full amount)
$628.60 to Yankee Candle Company, November, 2012 (along with this
charge on the Road District credit card, there is a note indicating the
purchase was for holiday gifts and a breakdown showing $572.62 to be
paid by the McHenry County Highway Commissioners and $55.98 to
Anna May Miller along with two checks for the same)
$94.47 credit card NAPA Auto Parts, January 2014 (submitted with
personal check for the entire amount by Road District employee Kunz)
$625.43 at Linen Source, November, 2015 (this purchase was made on
the Road District credit card and submitted with the request for
payment was a check from the McHenry County Highway
Commissioners for the full amount)
$682.43 at Rushing Waters Fishery, April, 2016 (this purchase was
made on the Road District credit card and submitted with the request
for payment was a check from the McHenry County Highway
Commissioners for the full amount)
$870.00 at Orchard Meats Deli and Wine, July, 2016 for “Township
Steak Fry” (this purchase was made on the Road District credit card
and submitted with the request for payment was a check from the
McHenry County Highway Commissioners for the full amount)
7. Amazon Purchases From Amazon Bookstore
$1,299 to Amazon, August, 2014
$117 to Amazon, December, 2014, $256.49 on December 12, 2014
$167.24 to Amazon, December, 2016
$182.00 to Disneyland, June, 2012
$256.90 for and $199.95 for a Kodak Digital Frame, January, 2013
$37.47 to Sam’s Club, February, 2013 (for weatherproof cornhole bags)
$93.74 to Edible Arrangements, December, 2013 (this was a credit card
purchase, get-well gift for Diane Klemm along with get-well card that
was signed by the entire Township Board)
$9.88 and $7.97 at Menards, June, 2015 (this was for a BBQ Tool Set
and long handled BBQ brush, respectively)
$299 to Blink for Home, January, 2016 (security system that allows
remote monitoring from phone)
$210.90 in Gift Cards from Jewel, June, 2016
$498.98 to Galati’s Hideaway (pizza retirement party), April, 2017
$206.25 to Dazell & Co. (retirement watch), April, 2017
B. Relevant Law
60 ILCS 1/80-10(a)
The township board shall meet at the township clerk’s office for the purpose of
examining and auditing the township and road district accounts before any
60 ILCS 1/80-15
The township board shall, at the same time and place as stated in Section 80-10,
examine the accounts of…the commissioner of highways of the township for all
moneys received and distributed by them. The board shall also examine and audit
(i) all charges and claims against their township and against their road district and
(ii) the compensation of all township officers.
605 ILCS 5/6-201.6
[The Highway Commissioner shall] [d]irect the expenditures of all moneys collected
in the district for road purposes, including those purposes allowed under Section 6-
201.21 of the this Code, and draw warrants on the district treasurer therefor,
provided such warrants are countersigned by the district clerk.
The Township Road Commissioner shall annually make a report in writing,
showing the following:
1) The amount of road money received by the district and a full and detailed
statement as to how and where expended and the balance, if any,
In counties under township organization, the reports in districts composed of a
single township shall be made to the board of town trustees within 30 days before
the annual town meeting…
605 ILCS 5/6-205
The [Township Supervisor] shall receive and have charge of all moneys raised in the
district for the support and maintenance of roads therein….He shall hold such
moneys at all times subject to the order of the highway commissioner and shall pay
them over upon the order of the commissioner…. In counties under township
organization such moneys, other than Social Security taxes required by the Social
Security Enabling Act, shall not be paid over until the board of trustees…has
examined and audited the claims or charges for which such order is drawn.
Article VIII, § 1(a) & (b) of the Illinois Constitution
Section (a) provides that “property or credit shall be used only for public
purposes.” Section (b) provides that [t]he State, units of local government and
school districts shall incur obligations for payment or make payments from public
funds only as authorized by law or ordinance.”
Unfortunately, there are only a few cases that are helpful in determining
what types and categories of expenditures have a “public purpose.” The most
illuminating is People ex rel. McDavid v. Barrett, 370 Ill. 478 (1939), decided by the
Illinois Supreme Court. Barrett involved the constitutionality of a statute that paid
the widows of deceased judges in an amount equal to the judge’s salary from the
date of his death to the time of the qualification of his successor. The law was
challenged on the grounds that the statute was an unconstitutional attempt to
provide gratuities from public funds for the exclusive benefit of private persons.
The Illinois Supreme Court began its analysis by stating, whether
government spending is for a public or private purpose is a question “not always
easy of determination.” It continued:
In deciding whether such purpose is public or private, courts must be
largely influenced by the course and usage of the government, the
object for which the [spending] has been customarily and by long
course of legislation levied and made, and what objects have been
considered necessary to the support and of the proper use of the
government. Whatever lawfully pertains to this purpose and is
sanctioned by time and the acquiescence of the people may well be
said to be a public purpose and proper for the maintenance of good
government…Limitations resting on theory, only, or on the vague
ground of doubt, but which the people have been satisfied to leave to
the judgment, patriotism and sense of justice of their representatives,
are not within the control of the courts. The power of the State to
expend public moneys for public purposes is not to be limited, alone,
to the narrow lines of necessity, but the principles of wise
statesmanship demand that those things which subserve the general
well-being of society and the happiness and prosperity of the people
shall meet the consideration of the legislative body of the State…If it
can be seen that the purpose sought to be obtained is a public one and
contains the elements of public benefit, the question of how much
benefit is thereby derived by the public is one for the legislature and
not the courts.
There are two important insights that are to be drawn from this excerpt. First, the
courts will give broad discretion to the legislature and the officials it tasks with
expending public funds. Courts will not generally substitute its judgment on the
question of whether the spending is for a “public purpose.” This is especially true if
that spending has been established over time as customary and one could
reasonably view (i.e. “it could be seen”) that the spending resulted is some, even
slight public benefit. Second, it is not enough to maintain that the spending was
not “necessary” to accomplish the intended public purpose or even that it is doubtful
that the spending was for a public purpose. Rather, public officials authorized by
the legislature to expend money appear to receive the benefit of the doubt.
The Illinois Supreme Court in Barrett also discussed awards or gratuities
given to public employees. It stated:
We held that representative government finds its greatest security in
a strong spirit of patriotism and love of county; and that whatever
tends to the greater patriotism and a greater interest in government
makes for the welfare of the State. We pointed out that the erection
of monuments and the awarding of swords and medals have always
been recognized as means of rewarding meritorious service, and the
legislature might use public funds for such purposes…[I]t holds that
the power to give rewards after the event of conspicuous public
service cannot be limited to military service; that if a man has
deserved greatly of the commonwealth by civil services, the public
advantage of recognizing his merit stands on grounds as strong as
that for rewarding a General; that the possibilities of genius or
distinguished worth cannot be foreseen so as to be settled for in
advance, and the public welfare, alone, is only legal justification for
such payment; and that whether the public good will be served, must
be left largely to the conscience of the legislature.
While public officials are afforded broad discretion, it is not limitless. In
Village of Oak Law v. Faber, 378 Ill. App 3d 458 (1st Dist. 2007), the appellate court
ruled that supplemental payments to a government employee untethered to an
actual service contravened Article VIII, §1. The court stated:
[c]ompensation and benefits of public employees must comply with
the constitutional requirement that public funds and property be
used only for public purposes. Thus it has been held that payment or
allowance in excess of that which was fixed by law or contract at the
time when services were rendered, and when no further services are
contemplated, is a gift for the private benefit of the individual, which
serves no public purpose…
Moreover, there are also a number of cases that were decided prior to the
ratification of the 1970 Constitution holding that supplemental pay in the form of
an increased pension or supplemental payment to retired public servants was
unconstitutional. Many of these cases were decided, however, on the basis of Art 4 §
19 of the 1870 Constitution, which prohibited the granting of any extra
compensation to any public officer, agent, servant, or contractor after service has
been rendered or a contract made. This section, importantly, was repealed when
the 1970 Constitution was ratified.
Official Misconduct, 720 ILCS 5/33-3
(a) A public officer or employee or special government agent commits misconduct
when, in his official capacity or capacity as a special government agent, he or she
commits any of the following acts:
(1) Intentionally or recklessly fails to perform any mandatory duty as
required by law; or
(2) Knowingly performs an act which he knows he is forbidden by law to
(3) With intent to obtain a personal advantage for himself or another, he
performs an act in excess of his lawful authority; or
(4) Solicits or knowingly accepts for the performance of any act a fee or
reward which he knows is not authorized by law…
(c) A public officer or employee or special government agent convicted of violating
any provision of this Section forfeits his or her office or employment or position as a
special government agent. In addition, he or she commits a Class 3 felony.
Theft, 720 ILCS 5/16-1
(a) A person commits theft when he or she knowingly:
(1) Obtains or exerts unauthorized control over property of the owner; or
(2) Obtains by deception control over property of the owner; or
(3) Obtains by threat control over property of the owner; or
(4) Obtains control over stolen property knowing the property to have
been stolen or under such circumstances as would reasonably induce him or
her to believe that the property was stolen; or
(5) Obtains or exerts control over property in the custody of any law
enforcement agency which any law enforcement officer or any individual acting in behalf of a law enforcement agency explicitly represents to the person as being stolen or represents to the person such circumstances as would reasonably induce the person to believe that the property was stolen,
(A) Intends to deprive the owner permanently of the use or benefit
of the property; or
(B) Knowingly uses, conceals or abandons the property in such
manner as to deprive the owner permanently of such use or benefit; or
(C) Uses, conceals, or abandons the property knowing such use,
concealment or abandonment probably will deprive the owner
permanently of such use or benefit.
In People v. Sturgeon, the defendant, a comptroller for a local water
commission, was found guilty of theft after using the commission’s debit card for
personal spending. 2016 IL App (4th) 140736-U. The personal spending included
hotel parking while on a personal vacation, trips to the grocery store and hardware
store, and Dish network service at the defendant’s personal address. As
comptroller, the defendant was responsible for paying the bills. The commissioners
only approved “large bills.” The commissioners testified that while there were no
formal spending policies, members were “aware” of general practices of spending
only for business related purposes. Upon being confronted by the commissioners,
the defendant offered to repay the money, claimed he was broke and needed extra
money, and that he deserved “extra stuff” for his work.
In finding that the lack of explicit polices was an insufficient grounds upon
which to reverse the defendant’s conviction, the appellate court noted that there
was a general understanding of authorized purchases and it would be unreasonable
for the defendant to make the assumption that he could spend money on personal
items or unilaterally reimburse himself. The court further rejected the defendant’s
arguments that some of the purchases, such as at the hardware store, were
legitimate. In dismissing this contention, the court noted that no one at the
commission had authorized the defendant to unilaterally make spending decisions.
The court noted further that the defendant’s response in offering to repay the
money when confronted by commissioners evidences his own understanding of the
improper nature of the charges.
Misapplication of funds, 720 ILCS 5/33E-16
(a) An officer, director, agent, or employee of, or affiliated in any capacity with
any unit of local government or school district commits misapplication of funds
when he or she knowingly misapplies any of the moneys, funds, or credits of the
unit of local government or school district.
(b) Sentence. Misapplication of funds is a Class 3 felony.
The question of whether or not Miller should be charged with a criminal
offense – “that he acted in excess of his lawful authority under the Illinois
Constitution or Highway Code (official misconduct), “obtain[ed] or exert[ed]
unauthorized control” over property (theft), or “misapplie[d] any public moneys”
(misapplication of funds) – rests upon a narrower question: whether the spending
can be deemed to be for a “public use.” In the case of a Highway Commissioner,
bestowed only with the authority to “direct the expenditures of all moneys collected
in the district for road purposes,” the question can be narrowed still further to
whether spending was for “road purposes.” As stated by the former and current
Township Supervisors, both elected by Township residents, as long as Miller had
money in his budget, generally the Road and Bridge Fund, he had expansive
discretion on how that money should be spent. This discretion was circumscribed
only by the power of the Township Board to examine and audit the Road District’s
spending before payment.
As stated by Trustees Sanchez and Emery, the Township Board had the
opportunity to review all Township bills, credit card purchases, and other
expenditures and had regular occasion to question Miller regarding said spending.
Trustee Fischer, in particular, stated that the Trustees would review the spending
“in detail.” Township attorney Jim Kelly stated that all Road District bills and
expenses were turned in the week before any Board meeting. He indicated further
that all Road District bills and expenses were and currently are available at the
Township for inspection by the public.
After review and on every occasion, the Trustees approved all of the above cited
What constitutes a “road purpose” is not a simple question. Certainly there
are the more literal among us who believe that a government workplace should be
as spartan as possible and would say that a “road purpose” is spending that results
in material or a service being directly applied to an actual road – e.g. salting,
plowing, and filling pot holes. This, however, sets the core and not the parameters.
Most should have no difficulty recognizing that there are types of spending not
directly tied to a physical road nor expressly authorized by statute that are
legitimate. In the case of the Road District, these would include attendance at
trainings or trade expositions that allow employees to become better informed as to
the nature of their work, internet access, phone service, certain types of work
clothes and equipment, and office supplies. One instinctively recognizes that, while
not directly related to a physical road, these are supporting expenses that are a
necessary corollary to road care.
As the necessity or the relation of the expense becomes more remote from the
physical care of roads, whether the spending is for a “road purpose” becomes more
obscure. In the first two months after Miller’s tenure, the current Highway
Commissioner spent taxpayer money, with Board approval, on such things as cable
television, a bouncy house, a balloon sculptor, and baseball hats. Perhaps tellingly,
no one is clamoring for the State’s Attorney’s Office to investigate these forms of
spending for purposes of establishing a criminal charge.
To be sure, however, one could legitimately question the degree to which any
of these expenses furthers a public purpose. On the other hand, one could certainly
make a case that they do. For example, the bouncy house at special events (like the
cornhole bags and barbeque equipment) serves to attract young families to the Road
District where, to further public relations and an understanding of Road District
work, they are allowed to inspect the grounds and equipment and interact with
One could similarly maintain that these forms of spending do not further a
road purpose or are beyond the ken of the express powers assigned to the Highway
Commissioner by statute. On the hand, the Highway Commissioner possesses not
only those powers expressly granted, but also those powers “necessary or fairly
implied in, or incident to, the powers expressly granted.” For example, “incident to”
a highway commissioner’s express authority to oversee a public body and “employ
labor” is his authority to purchase hats on behalf of those employees so they may be
readily identified when in public, to foster a team spirit and cooperation among
The aforementioned expenditures during Miller’s tenure, while perhaps
controversial, are of a different nature than those that have been previously found
to sustain criminal charges. In People v. Howard, 228 Ill. 2d 428 (2008), a mayor
was convicted of official misconduct after obtaining cash advances to play video
poker. In People v. Mehelic, a highway commissioner was found guilty of official
misconduct and theft after ordering a township employee to work on his personal
car during work hours. 152 Ill. App. 3d 843 (5th Dist 1987). Moreover, this case is
readily distinguishable from Sturgeon. Unlike Sturgeon, Miller’s purchases were
all reviewed and approved by the Township Board. There is no evidence that Miller
attempted to conceal or misrepresent any Road District expenditure. Moreover,
unlike the purchases in Sturgeon, such as hotel parking while on a personal
vacation and cable at the defendant’s residence, all of the questionable purchases
bore at least some relation to Township activities.
When evaluating the aforementioned expenditures, it is also important to be
considerate of the context in which they were made. As described by Charles
Lutzow, current Township Supervisor and former Township Clerk, and over the last
20 years, no one at the Township had seen fit to formalize any system of internal
controls for spending. Rather, he stated that “everyone just did [what] they thought
was correct.” Lutzow describes how years ago it was common practice for all
Township employees to bring their wives on trips to out-of-state conferences at the
expense of the Township. While operating in an institutional culture that is, at
best, inattentive does not excuse individual acts of wrongdoing, long-standing
practices evidenced by bills that are subject to review at any time by the public and
their representatives are not irrelevant to the question here. As stated by the
Supreme Court, “in deciding whether such purpose is public or private, courts must
be largely influenced by the course and usage of the government, the object for
which the [spending] has been customarily and by long course of legislation levied
and made, and what objects have been considered necessary to the support and of
the proper use of the government.”
The State’s Attorney’s Office does not consider itself to be in a better position
than the elected officials entrusted by the legislature and Algonquin Township
constituents to oversee and safeguard spending at the Road District and ensure all
spending is for a “road purpose.” As stated by the Supreme Court, “if it can be seen
that the purpose sought to be contained is a public one and contains the elements of
public benefit, the question of how much benefit that is thereby derived by the
public is one for the legislature and not the courts.” Barrett, 370 Ill. 478 at 483. As
such, we will generally defer to Miller and the Trustees that reviewed and
unanimously approved these expenditures unless there is no credible basis upon
which to view the expenditure as being for a “road purpose” as opposed to private
We believe that modest and infrequent expenditures for such things as
holiday dinners, gift cards, breakfast or lunch for the staff before an annual trade
show, holiday gifts, gatherings for staff, and “get well” bestowals have “elements of
a public purpose.” As stated by Lutzow, retention and satisfaction of experienced
and competent employees are “very important matters that were directly related to
road district operations and would be deemed a legitimate use of township funds.”
We are aware of an enormous body of learning and research indicating that
employee recognition, often in the form of tokens of appreciation or meals, is vital to
creating a functional work environment, increasing productivity, and building
teamwork. We are aware further of a number of other local governmental
organizations that also expend de minimis amounts in their budget in similar ways.
With respect to the breakfasts and lunches before and after trade shows,
specifically, a number of employees indicated that these meals had elements of a
business meeting in that they would discuss Road District business and the trade
show. Moreover, we are aware of a number of governmental organizations that
regularly reimburse employees for travel expenditures, especially meals.
Specifically with respect to the gift cards, Lutzow stated that these were
provided to members of the public whose mail boxes were destroyed or damaged
accidentally by Road District workers during the process of maintaining roads. We
find these small gestures in an attempt to maintain community relations and
provide some recompense to the members of the public who had to bear the
inconvenience of damaged property sufficiently related to a public purpose.
We also find elements of a public purpose in expenditures for clothing and
carry bags. As to the clothes, Anna May Miller was responsible for being present at
the Township and addressing the needs and concerns of constituents. It is certainly
important for those dealing with the public to present in an orderly and professional
manner. We are aware of other government agencies that provide clothing
allowances for office work attire to employees. As all of the attire purchased by the
Road District would appear to be appropriate in an office setting (e.g. there were no
biking spandex or bathing suits purchased), the mere expense of women’s clothes is
insufficient to establish criminality beyond a reasonable doubt. Moreover,
Township Clerk Lukasik indicated that some of the clothes purchased by Anna May
Miller were rugged in nature and worn during recycling and shredding events that
involved “getting dirty.” Though true that the clothing allowance policy does not
cover women’s clothing, there is no law stating that Miller is required to follow the
administrative policies he sets or cannot, on occasion and in his best judgment,
deviate from those policies.
As for the bags, we believe that Trustee Fischer provides an adequate
explanation. According to Fischer, Miller was questioned on the bag purchases on
at least one occasion and satisfactorily explained that the bags were for the purpose
of transporting Township documents to and from business meetings. As verified,
the grape/black Levenger bag purchased in 2016 is currently in the possession
With respect to the Disneyland tickets, this expenditure also bore elements of
legitimacy. We learned that at the time the tickets were purchased, there was an
American Public Works Association conference being held in Anaheim, California.
We learned further that, as part of the conference, there was a training and
networking event held at Disneyland that necessitated the purchase of the tickets
at a reduced rate.
With respect to the few personal charges for such things as a car battery and
holiday gifts that were credited to the Township credit card and subsequently paid
with personal funds, we see little here that warrants felony prosecution. While it is
likely true that Miller had no statutory authority to charge these items, which were
unrelated to a “road purpose”, he did have the explicit approval of former Township
Supervisor Diane Klemm and the evident approval of Trustees. Moreover, in order
to constitute official misconduct, the act in “excess of lawful authority” must have
resulted in a “personal advantage.” In view of the facts that the Road District was
repaid in full, any personal advantage that may have been derived is somewhere
between slight and non-existent.
In Howard, there was evidence that the defendant paid back the cash
advances he received for video poker. Under the official misconduct statute, the
court ruled that the repayments did not immunize the defendant from “official
misconduct” because he acted in excess of lawful authority and “personally
benefitted” in that he obtained an “interest-free” loan. In so holding though, the
court made an interesting finding. Specifically, the court stated that it “was not
unsympathetic” to the defendant’s argument that the “official misconduct” statute
as applied to situations like this where there was minimal actual harm could result
in “overzealous prosecution of undeserving defendants.”
The nature of the questionable spending here is distinct. Miller used his
credit card to buy Christmas gifts for staff and Township employees, whereas the
defendant in Howard used cash advances to play video poker after his personal
funds were depleted. Moreover, unlike Howard, the Trustees approved this form of
spending; Diane Klemm explicitly stated that Miller had authority to use the credit
card in this manner. The harms suffered by the Township or taxpayers in
unwittingly providing an “interest-free” loan to the Road District for a month or less
amounts to, at most, a few cents. Even if this spending could be said to constitute
official misconduct or misapplication of funds, we believe a felony charge here would
be overwrought and constitute an overzealous prosecution beyond any public
With respect to meals after special events like “Recycling Day” and “Touch a
Truck” (noted in investigative reports), we likewise see elements of a public
purpose. These meals were provided to employees working on weekends, served on
the Township premises, and enabled overtime work.
With respect to the Blink Camera, both Lutzow and IT consultant, Keith
Seda, verified that Miller had this camera in his Office and used it for security
With respect to the Kodak digital frame, we learned that these were used at
trade shows and business expos to display pictures of Road District operations and
With respect to the Amazon Bookstore purchases, we learned that these were
for SD cards and electric cables, not books. These electric cables and SD cards were
used in conjunction with advanced electronic equipment built into trucks.
With respect to the retirement party and gift in April of 2017, while
seemingly excessive, this spending to recognize the perceived meritorious service of
an employee has been seen by the supreme court as having a public purpose.
With respect to the credit card points, the FBI and the Illinois Attorney
General’s Office, who received the FBI’s Amazon and credit card subpoenas,
investigated this matter. So as not to duplicate efforts, we did not conduct a
parallel investigation. Both the FBI and Attorney General’s Office informed us that
they were unable to develop evidence regarding any alleged misuse of credit card
points sufficient to establish grounds for a criminal prosecution. That said, we are
currently in the process of verifying these findings.
With respect to the Election Judges meals, we learned that the Algonquin
Township served as a meeting place for all 68 of the precincts located in Algonquin.
After the elections, the judges would drop off all of the election equipment at the
Township and Township employees loaded the items onto a truck to transport it
back to the County (financial records indicate that the Township was reimbursed
for manpower hours by the County Clerk). According to Lutzow, the Township and
Road District would split the cost of feeding the election judges, who had worked a
15-hour day, dropping off the equipment. According to Lutzow, feeding election
judges was a longstanding practice.
We do have serious doubts that expenditures for election meals, especially
during elections not involving townships, served any public or road purpose.
Though perhaps a considerate gesture on behalf of election judges that may have an
attenuated relationship to public relations, such spending is wholly inconsiderate of
taxpayers. Townships must be mindful of the fact that they are not charitable
organizations. However and again, we are reminded of the guidance provided by
the Illinois Supreme Court that objections to spending based on “the vague ground
of doubt” or on the grounds that it only provides a limited public benefit are not
questions for the court.
We find no evidence that Miller was enriched by providing food to election
judges or sought to further some personal interest in doing so. Moreover, even if we
were to conclude that the spending had no credible public purpose, we face the
thorny question of who to indict? Miller? The Trustees and Township Supervisor
that sanctioned half of the spending from Township funds? We do not regard justice
as being served by subjecting all of these people, who lack a sophisticated
understanding of the vagaries of Article VIII, section 1 of the Illinois Constitution or
Dillon’s Rule, to the risk of a felony conviction. Nor do we believe doing so would be
in the public interest.
We note too that the Township’s or Road District’s interest here can be readily vindicated in civil court by suing to recover any spending deemed inappropriate.
Despite our efforts and short of a search warrant for Miller’s residence that
no judge would authorize due to staleness, we were unable to physically account for
a number of items purchased with Township funds, such as the Blink Camera, some
clothing purchases, carry bags, and few other items. While some believe that the
ostensibly questionable nature of these purchases and the fact that these items
currently cannot be accounted for is sufficient evidence upon which to charge Miller;
it is not. There are a number of other reasonable explanations beyond Miller
having stolen these items that cannot be eliminated. These include the possibilities
that some other Township employee took unauthorized control over the property or
that the items were damaged or reached the end of their useful life and were
Upon review of the credit card statements and other expenditures, there are
a number of charges that cannot plainly be settled as for a “road purpose” just by
considering the business credited. Our one investigator could spend a very long
time subpoenaing every business that has accepted the Road District’s credit card
over the last several years for itemized receipts and any other documentation they
may still retain and seek to identify and interview employees involved with any of
the transactions with the Road District on the off chance they have some lingering
recollection of an unremarkable business transaction from years prior. We decline
to expend our limited resources in this manner. At this juncture, we are satisfied
by the facts that the Trustees contemporaneously reviewed and approved all Road
District spending over the course of many years and specific allegations of improper
spending are either unsupported or do not amount to proof beyond a reasonable
As such, we are not moved by the “what about this?” form of rebuttal to our
conclusions here. Our job has been to investigate the specific allegations that have
been brought to the State’s Attorney’s Office, not investigate Miller “generally” or
audit and verify every transaction. As stated, our investigation may or may not end
here. If anyone has any specific information or evidence that a specific Road
District expenditure not discussed here solely furthered a private interest, please
contact our Office to schedule an interview.
It bears repeating that our analysis here is not an endorsement of the
manner in which Road District resources were allocated. As taxpayers ourselves,
we certainly consider many of the expenditures to be imprudent and the amount
paid unworthy of the purported “public benefit.” Miller is not solely to blame. We
regard the Township’s lack of a written, detailed, and binding spending policy and
overall insouciance to the manner in which taxpayer money was consumed as a
breach of its fiduciary duty to taxpayers.
However, Illinois law is grossly undeveloped and ambiguous with regard to
the limits of public spending and we do not believe criminal court, which requires
proof beyond a reasonable doubt and where one’s liberty is in jeopardy, is the
appropriate venue in which to seek clarification. As such, we defer to the Illinois
Supreme Court’s admonition that “limitations [on public spending] resting on
theory, only, or on the vague ground of doubt, but which the people have been
satisfied to leave to the judgment, patriotism and sense of justice of their
representatives, are not within the control of the courts.” In Illinois, the legislature
has seen fit to impart expansive authority upon highway commissioners to direct
“the expenditure of all moneys” subject only to review by trustees and only after
being elected to do so by constituents. As nearly all of the spending reviewed here
can be deemed as having the elements of a public benefit, however nominally,
whether said spending was patriotic, just, or show good judgment is a question best
left to voters, not the courts. Indeed, voters appear to have already spoken on the
II. Allegation: Miller was illegally paying employees in the form of
A. Summary of the Facts
Between January of 2013 and May of 2017, the Road District paid employees
in the form of “miscellaneous pay” in the following amounts:
A.M. Miller, $29,290
B. Doubek, $19,4500
D. Helman, $26,212.50
D. Lee, $30,335
R. Voss, $22,800
A. Rosecrans, $25,135
D. Stern, $23,600
D. Turskey (bus driver), $1,400
D. Wacyk (bus driver), $1,400
R. Greene, $18,050
N. Chrikos (bus driver), $550
A. Sylvester (bus driver), $550
K. Fitzgerald, $7,150
D. Morrison, $6,353.13
M. Barnas, $8,750
C. Mohr, $1,200
R. Mohr (bus driver), $1,050
K. Lukasik (bus driver), $250
This miscellaneous pay was provided to employees as salary in addition to their
regular hourly and overtime pay.
During interviews, Township employees justified “miscellaneous pay” in a
number of ways. Many employees explained the approximately $200 payments
allocated monthly between April and November as compensation for four hours of
weekend work at Township recycling events. Employees also described receiving
“miscellaneous pay” for working at other special Township events, such as “Touch a
Truck,” usually held during summer months. Pay varied depending on the number
of hours worked and whether employees were involved in “set up” and “clean up.”
Road worker employees, who were responsible for maintaining the roads, also
described receiving $100 weekly for being “on call.” Each month, one or two
employees were designated as being “on call” to address all off-hour emergencies
other than snow removal. In addition, road workers, who were also responsible for
operating or servicing the snowplows during winter months, indicated that they
received “shift differential pay” as “miscellaneous pay.” Shift differential pay is
extra pay for having to be on-call if weather during the winter months required a
“call out” for road work.
We learned during the course of our investigation that employees Lee and
Barnas received “foreman’s pay” once a year in the amount of approximately $1,700.
This was to compensate them for their managerial and supervisory duties.
Sylvester, a bus driver, described the $550 he received in “miscellaneous pay”
in December of 2015 and 2016 as a “holiday bonus.” Sylvester identified “general
knowledge around the road district” as his basis for believing the money he received
was a bonus. He indicated further that he never had a conversation with Miller
about the extra money, as he did not want to ask questions.
Helman and Tursky also described the pay received in November and December as a bonus.
Lukasik similarly indicated that the “miscellaneous pay” she received was
“above and beyond” pay for exceptional work on behalf of the Road District.
Mohr indicated that “miscellaneous pay,” especially around the holiday, was
a creative way Miller allocated the budget to provide increased pay to employees
without giving raises or cost of living increases.
This was done, according to Mohr, in an effort to keep the tax levy flat.
Most of the employees interviewed, upon reviewing the few “miscellaneous
pay” awards not associated with “winter shift differential” pay or a special event
were often uncertain as to what work they had done to validate the payments. They
attributed this to the fact that receiving “miscellaneous pay” was an unremarkable
part of employment and their inability to recall the reasons for payments issued
Helman also indicated that A. Miller, a regular recipient of miscellaneous
pay, worked “very long hours” and he knew she had “additional responsibilities”
beyond a 40-hour work week.
Klemm stated that she was aware of the “shift differential pay.” She stated
that all the road workers and A. Miller were authorized to receive this pay.
Specifically, A. Miller was entitled to receive “winter shift differential” pay because
she would also have to be on-call to take care of internal matters during winter
month “call outs.” Klemm stated that A. Miller’s “shift differential” pay was
approved by the Township Board. Klemm stated further that she was aware that
bus drivers received additional pay around the holidays. Klemm stated that Miller
had the authority to spend the money in his budget as he saw fit.
Lutzow described “miscellaneous pay” as just how they coded “stipend” pay in
the system. Lutzow stated further that he believed that Miller was allowed to
spend the money in his budget as he saw fit, which included giving stipends to
employees. Lutzow also stated that A. Miller worked very long hours, describing
the Road District as her life. He stated further that if her husband was called out
for weather during winter periods, A. Miller went too. Lutzow opined that stipend
pay served the public purpose of adequately compensating and retaining productive
employees. He felt “miscellaneous pay” was a legitimate use of Township funds.
Trustees Emery and Fischer, who both served from 2013 through 2017,
stated that Miller had the authority to give bonuses or stipends instead of raises as
long as he was working within his approved budget. Fischer stated that she
believed it was within Miller’s authority to provide miscellaneous payments. All
“miscellaneous pay” distributed by Miller between 2012 and 2017 was approved by
the Township Board.
As of February of 2018, the current Highway Commissioner had continued
the practice of providing “on call” pay and “shift differential pay” in the form of
“miscellaneous pay.” In particular, road workers received “miscellaneous pay” in
the amount of $100 per week for being “on call” generally and $350 per month from
November through March.
During the course of our investigation, we learned that all employees,
including A. Miller, were hourly, non-exempt employees. All employees indicated
that they did not have a written employment contract and that their “regular rate,”
i.e. hourly-rate for 40-hours, was set by oral agreement. The employees indicated
further that they would receive an hourly rate of time-and-a-half for overtime work
or a flat “miscellaneous pay” rate for certain types of overtime work at special
events. Many indicated that they did not receive a raise or cost-of-living increase
between 2012 and 2017. All “miscellaneous pay” was included for accounting
purposes as “salary” and subject to taxation.
Upon review of a spreadsheet of all miscellaneous pay disbursed between
2012 and 2017, certain patterns emerge. First, between the months of April and
November, a number of employees received a one-time payment of around $200 on
the same day; variously, some employees receiving more or less. We learned during
the course of our investigation that the $200 per employee amount was meant to
compensate all employees equally as they were doing the same amount and type of
work. The $200 figure is an approximation of the overtime rate for the highest paid
road worker for four hours of work. In addition, during the summer “miscellaneous
payments” for a number of employees coincided with document shredding, Touch-aTruck,
and other special events.
Upon further review, in the months of November and December, all road
workers and A. Miller received between one and four payments amounting to
approximately $3,000. This is consistent with “winter shift differential pay.”
Additionally, in December, the bus drivers received a one or two time payment in
the amount of $500 or less.
Upon further review, there were monthly payments of $200 interspersed
between one or two employees each month. This is consistent with the non-weather
related “on call” pay.
Relevant provisions of the employee manual, effective 2012 and still effect as
of April of 2018, are as follows:
…The Handbook is presented to provide you with general
guidance about the Road District’s current rules and procedures as
well as the benefits currently offered to eligible employees. This
Handbook is not an exhaustive list of every workplace rule and policy,
but rather a guide to employees on commonly raised questions. Other
policies may exist that are not included in this Employee Handbook.
While the Road District believes wholeheartedly in plans,
policies, and procedures described in this Handbook, they are not
conditions of employment and are subject to unilateral change by the
Road District, which may reinterpret, change, supplement, or rescind
any part of this Handbook or any of its other policies from time to
time as it deems appropriate, with or without notice.
It is important that you understand that you are employee “at
will,” which means that either you or the Road District may end your
employment at any time, for any reason, with or without notice, and
with or without cause. This Handbook is not to be construed as a
contract for employment.
HOURS OF WORK
SCHEDULED WORK HOURS
The Highway Commissioner will set the work hours of each employee.
The Highway Commissioner may stagger, rearrange, and adjust the
hours of employment of his employees in such a manner as to enable
him to provide all required services.
HOURS OF WORK COMPENSABLE AT STRAIGHT TIME
Road district employees will be compensated according to the salary
schedule at the approved rate of pay for all work up to 40 hours in a
HOURS OF WORK COMPENSABLE AT OVERTIME
Compensation of overtime hours worked will be made in accordance
with the Fair Labor Standards Act. In the event employees are
required to work hours in excess of 40 hours in a week, overtime will
be paid under the following conditions:
A. Overtime pay will be provided to those employees designated to receive overtime at a rate of 1.5 times their regular hourly rate of pay…
WAITING TIME AS HOURS OF WORK
Certain Road District positions require waiting time before
performance of work. In computing hours worked, waiting time is to
be considered under the following conditions:
A. On DUTY: Waiting time under direction of an employee’s
supervisor during a scheduled work day shall be
considered hours of work.
B. OFF DUTY: Waiting more than one-half (1/2) hour before
or after a scheduled work day which the employee may
use as his own time off is not to be counted as hours
…The Road District reserves the right to establish a dress code for all
employees that have direct contract with customers or suppliers of
the Road District. All employees are expected to follow all prescribed
safety codes, such as the wearing of safety shoes, safety goggles when
There is nothing in the policy related to “miscellaneous pay,” reimbursement
of expenses, holiday bonuses, or compensation for special events (e.g. recycling).
B. Relevant Law:
60 ILCS 1/80-10(a)
See section I.
60 ILCS 1/80-15(a)
See section I.
605 ILCS 5/6-201.6
See section I.
See section I.
605 ILCS 5/6-201.20
Every highway commissioner with 5 or more employees in a county under township
organization shall set and adopt rules concerning all benefits available to employees
of that office. The rules shall include, without limitation, the following benefits to
the extent they are applicable: insurance coverage, compensation, overtime pay,
compensatory time off, holidays, vacations, sick leave, and maternity leave.
605 ILCS 5/6-205
See section I.
Article VIII, § 1(a) & (b) of the Illinois Constitution
See section I.
Fair Labor Standards Act, 29 U.S.C §207
(a)(1) Except as otherwise provided in this section, no employer shall employ any of his
employees…for a work week longer than forty hours unless such employee receives
compensation for his employment in excess of the hours above specified at a rate not
less than one and one-half times the regular rate at which he is employed…
(e)(6) As used in this section the “regular rate” at which an employee is employed shall
be deemed to include all remuneration for employment paid to, or on behalf of the
employee, but shall not be deemed to include…extra compensation provided by a
premium rate paid for work by the employee on Saturdays, Sundays, holidays, or
regular days of rest, or on the sixth or seventh day of the workweek, where such
premium rate is not less than one and one-half times the rate established in good faith
for like work performed in nonovertime hours on other days;…
There is no direct prohibition on bonuses for public employees in Illinois.
Moreover, no Illinois case has interpreted the Constitution or the law as imposing
such a ban. Our review of a number of other states reveals that bonuses for public
employees are generally condoned. As stated by the Supreme Court of California:
With respect to a public employer’s provision of benefits to its employees,
including bonuses for work already performed, the cases have been fairly
uniform in finding that such benefits serve public rather than
private purposes. [Authorized bonuses] are ‘necessary to ensure the
continued recruitment and retention of qualified and competent state
Official Misconduct, 720 ILCS 5/33-3
See section I.
In People v. Williams, the Illinois Supreme Court upheld the reversal of a
conviction for official misconduct of a police dispatcher who informed the mother of her
child and alleged drug dealer of police activity near his residence. 239 Ill. 2d 119
(2010). Her disclosure violated the police department’s rules and regulations
regarding confidential information. The dispatcher was charged with official
misconduct under section 33-3(a). The dispatcher was convicted at trial and the
appellate court reversed. The supreme court ruled that the police department’s rules
and regulations, though authorized to be established by ordinance of the village, are
not “laws” for purposes of the official misconduct statute. Rather, a law cannot be
construed as rules “promulgated solely by a person in authority of a governmental
department,” but rather requires some type of “formal legislative process.”
Theft, 720 ILCS 5/16-1
See section I.
Misapplication of funds, 720 ILCS 5/33E-16
See section I.
From a legal standpoint, there is nothing criminal about providing
“miscellaneous pay” to public officers. Pursuant to 605 ILCS 5/6-201.15, the highway
commissioner has broad authority to “direct the expenditures of all moneys collected in
the district for road purposes,” which would self-evidently include employee earnings.
With few limitations, Miller was authorized to code and distribute employee
compensation in whatever manner or form he chose, including “miscellaneous
payments.” There is no law that required Miller to enter into written contracts with
his employees setting forth the specifics, manner, and schedule of their remuneration.
There is no law that prohibited Miller from paying employees for the services they
provide only at “regular” and “overtime rates.” Rather, 29 U.S.C. 207(b)(e)(6)
contemplates “premium” payments for work performed on off-days or weekends, so
long as the amount is one and one-half times the rate established for “like work.”
Even if Miller was required to pay employees one and one-half times the regular
rate for special events like “Touch a Truck and “Recycling Days,” it appears Miller
complied with such a mandate in that he paid all employees the one and one-half
times rate for the highest paid employee. Nothing prohibited Miller from paying
employees more than time-and-a-half for overtime work. Our conclusions here were
confirmed by the Illinois Department of Labor and labor attorney John Kelly.
We recognize that “miscellaneous pay” is not mentioned in or authorized by the
“Algonquin Township Road District Personnel Policies and Procedures Handbook.”
However, any breach of personnel policy is just that, a breach of the personnel policy
and, as made clear by Williams, not Illinois law. Moreover, the personnel policy
explicitly states that its contents are “not conditions of employment and are subject to
unilateral change by the Road District, which may reinterpret, change, supplement, or
rescind any part of this Handbook or any of its other policies from time to time as it
deems appropriate, with or without notice.” Section 605 ILCS 5/6-201.20 provides that
a highway commissioner “shall set and adopt” personnel policies, not that he is
required to follow them. This is, no doubt, a poorly written piece of legislation, but
Even if “winter-shift differential pay” or December payments to bus drivers
could be deemed a bonus, this is not necessarily a violation of Article VIII, section 1 of the Illinois Constitution. We are aware that in 2016, Governor Rauner provided State
employees with bonuses totaling over $3 million. Moreover, we find elements of a
public purpose in providing discretionary bonuses as one could reasonably maintain
that they are “necessary to ensure the continued recruitment and retention of
qualified and competent…employees.”
It is true that due to time and fallible memories, we have been unable to
conclusively link a few of the hundreds of the “miscellaneous payments” made over the
course of six years to a specific purpose or service provided the Road District.
However, our investigation consistently revealed that by law and as applied, the
disbursements in the form of “miscellaneous pay” do not rise to the level of a criminal
Here again, we recognize that our conclusion is unsatisfying, especially when
considering that employees Anna May Miller and Derek Lee amassed the most in
“miscellaneous pay” over the course of six years by a few thousand dollars. We are
sympathetic to the viewpoint that an elected official’s employment of his or her
immediate family, especially in lucrative positions, is a serious breach of that official’s
civic obligations. That said, Illinois voters have seen fit to endure a Highway Code
that imposes few if any limits on the manner in which a highway commissioner
compensates his employees. Algonquin voters saw fit to reelect Miller term after term
despite the availability of public records documenting the questionable manner in
which he exercised his spending authority. Short of criminal conduct, it is the voters
that must defend the public’s interest in good laws and conscientious representatives.
III. Allegation: Miller Unlawfully Sold and Purchased Street Sweepers in 2017.
A. Summary of the Facts
i. Purchase of New Sweeper
In 2012, the Road District purchased a new street sweeper for $246,000.
According to Road District employees, the machine immediately began having
mechanical problems. These problems were exacerbated by a vehicle crash the
sweeper suffered shortly after it was purchased. In 2015 and not satisfied with the
2012 street sweeper, the Road District began the process of looking to purchase a new
street sweeper. As part of this process, the Road District agreed with Elgin
Manufacturing to beta-test an Elgin Crosswind street sweeper for a year. During the
beta-testing process, Township employees indicated that they were very satisfied with
the Elgin machine, favoring this model, and Elgin products for their superior
performance, parts availability, ease of maintaining and making repairs, and
familiarity with the operating system.In early 2017, the Road District released and published a solicitation for bids for a new street sweeper. Based on the recommendations of employees, the Road District used the Elgin model’s specifications delivered to it by Standard Equipment in the
invitation for bids. It should noted that Standard Equipment is the only retailer in
Midwest that sells Elgin Products. The Road District received three bids in response,
one of which was from Standard Equipment for the Elgin Crosswind model. Standard
Equipment was selected by the Road District despite the fact that its bid of $307,719
was approximately $40,000 higher than the next lowest bid.
Employees indicated that they believed that Standard Equipment was the
lowest “responsible bidder” as the other bids did not conform to the specifications in significant ways and the Road District operators felt the Elgin hybrid model best suited their purposes. The bids were not revised after the initial invitation, and all bidders received the same information.
We were unable to develop any evidence of collusion between Standard Equipment and the Road District.
It should be noted that Standard Equipment gave campaign contributions to
Robert Miller’s campaign on nine occasions from 2008 to the present totaling $3,750.
It appears that Standard Equipment donated 230 times to other campaigns over the
ii. Sale of Old Sweeper
According to the Island Lake’s Public Works director, Brian Bartnick, Island
Lake became aware that the Road District was planning to purchase a new sweeper
and contacted the Road District about the possibility of selling the 2012 sweeper. This
was done approximately a year in advance of the actual sale. Miller permitted Island
Lake to test the 2012 sweeper before the final purchase. In April of 2017, Island Lake
purchased the 2012 sweeper from the Road District for $70,000. Elector approval was
not sought nor was any public notification of the sale made.
At the time of the sale, the 2012 sweeper had main engine hours of 2,612,
sweeper chassis miles of 15,015, and engine hours of 1,263. As mentioned, the
sweeper was involved in a crash on August 9, 2012 in which it was damaged. The
sweeper sustained $36,000 in repairable damage. The repairs appeared extensive and
covered multiple body, frame, and mechanical damage areas.
B. Relevant Law:
605 ILCS 5/6-201.17
The Road Commissioner shall] [h]ave authority to purchase or lease or to finance the
purchase of highway construction and maintenance equipment under contracts
providing for payment in installments over a period of time of not more than 10 years
with interest on the unpaid balance owing not to exceed 9%. The purchases or
contracts are subject to the bid provisions of Section 6-201.7 of this Code. In single
township road districts, sale of road district property including, but not limited to,
machinery and equipment shall be subject to elector approval as provided in Section
30-50 of the Township Code…
605 ILCS 5/6201.7
…Except for professional services, when the cost of construction, materials, supplies,
new machinery or equipment exceeds $20,000, the contract for such construction,
materials, supplies, machinery or equipment shall be let to the lowest responsible
bidder after advertising for bids at least once, and at least 10 days prior to the time set
for the opening of such bids, in a newspaper published within the township or road
district, or, if no newspaper is published within the township or road district then in
one published within the county, or, if no newspaper is published within the county
then in a newspaper having general circulation within the township or road district…
60 ILCS 1/30-50
(a) The electors may make all orders for the purchase, sale, conveyance, regulation, or
use of the township’s corporate property (including the direct sale or lease of single
township road district property) that may be deemed conducive to the interests of its
inhabitants, including the lease, for up to 10 years, or for up to 25 years if the lease is
for a wireless telecommunications tower, at fair market value, of corporate property
for which no use or need during the lease period is anticipated at the time of leasing….
(d) …Anytime during the year, the township or township road district may lease or sell
personal property by a vote of the township board or request of the township highway
The clerk shall thereafter publish the resolution or personal property sale notice
once in a newspaper published in the township or, if no newspaper is published in the
township, in a newspaper generally circulated in the township. If no newspaper is
generally circulated in the township, the clerk shall post the resolution or personal
property sale notice in 5 of the most public places in the township. In addition to the
foregoing publication requirements, the clerk shall post the resolution or personal
property sale notice at the office of the township (if township property is involved) or
at the office of the road district (if road district property is involved). The following
information shall be published or posted with the resolution or personal property sale
notice: (i) the date by which all bids must be received by the township or road district,
which shall not be less than 30 days after the date of publication or posting, and (ii)
the place, time, and date at which bids shall be opened, which shall be at a regular
meeting of the township board.
…The notice and competitive bidding procedure shall not be followed when real
or personal property is declared surplus by the township board or the highway
commissioner and sold to another governmental body…
60 ILCS 1/85-30
Any purchase by a township for services, materials, equipment, or supplies in excess of
$20,000 (other than professional services) shall be contracted for in one of the
(1) By a contract let to the lowest responsible bidder after advertising for bids at
least once (i) in a newspaper published within the township, or (ii) if no newspaper
is published within the township, then in one published within the county, or (iii) if
no newspaper is published within the county, then in a newspaper having general
circulation within the township.
(2) By a contract let without advertising for bids in the case of an emergency if
authorized by the township board.
Interference With Contract Submission and Award By Public Official, 720 ILCS 5/33e6
(a) Any person who is an official of or employed by any unit of State or local
government who knowingly conveys, either directly or indirectly, outside of the
publicly available official invitation to bid, pre-bid conference, solicitation for contracts
procedure or such procedure used in any sheltered market procurement adopted
pursuant to law or ordinance by that unit of government, to any person any
information concerning the specifications for such contract or the identity of any
particular potential subcontractors, when inclusion of such information concerning the
specifications or contractors in the bid or offer would influence the likelihood of
acceptance of such bid or offer, commits a Class 4 felony. It shall not constitute a
violation of this subsection to convey information intended to clarify plans or
specifications regarding a public contract where such disclosure of information is also
made generally available to the public.
(b) Any person who is an official of or employed by any unit of State or local
government who, either directly or indirectly, knowingly informs a bidder or offeror
that the bid or offer will be accepted or executed only if specified individuals are
included as subcontractors commits a Class 3 felony.
(c) It shall not constitute a violation of subsection (a) of this Section where any person
who is an official of or employed by any unit of State or local government follows
procedures established (i) by federal, State or local minority or female owned business
enterprise programs or (ii) pursuant to Section 45-57 of the Illinois Procurement Code.(d) Any bidder or offer or who is the recipient of communications from the unit of
government which he reasonably believes to be proscribed by subsections (a) or (b),
and fails to inform either the Attorney General or the State’s Attorney for the county
in which the unit of government is located, commits a Class A misdemeanor.
(e) Any public official who knowingly awards a contract based on criteria which were
not publicly disseminated via the invitation to bid, when such invitation to bid is
required by law or ordinance, the pre-bid conference, or any solicitation for contracts
procedure or such procedure used in any sheltered market procurement procedure
adopted pursuant to statute or ordinance, commits a Class 3 felony.
(f) It shall not constitute a violation of subsection (a) for any person who is an official
of or employed by any unit of State or local government to provide to any person a copy
of the transcript or other summary of any pre-bid conference where such transcript or
summary is also made generally available to the public.
i. Purchase of New Sweeper
Miller did not evidently violate any of the bidding procedures. Rather, the
solicitation for bids was appropriately published, the bids were appropriately received,
To be sure, creating bid specifications aimed at a result where only one brand or
make of product meets all specifications would seem to violate the spirit of the
competitive bidding process, this does not necessarily mean that such conduct arises to
the level of a felony offense. Through our investigation, it was learned that it is
neither illegal nor uncommon when purchasing specialized equipment for an entity or
company seeking to purchase an item to begin their quest by obtaining sample sets of
specifications for the items they may wish to purchase and using or amending those
specifications for the invitation to bid. This is evidenced here by the fact that in
addition to Standard Equipment, at least one other company, RNOW, also submitted a
sample set of bid specifications. Moreover, we do not necessarily find it unreasonable
that a Road District would seek to purchase a product it believes best suits its needs
and that its employees are most comfortable using and maintaining.
We are not in a position to determine whether Standard Equipment was the
lowest “responsible” bidder. The term “lowest responsible bidder” appears in multiple
Illinois statutes governing purchasing by Illinois governmental bodies. In determining
whether a bidder is “responsible,” a government body should look to the ability of the
bidder to meet the requirements of the contract, the qualities of the articles supplied,
their conformity to the bid specifications, the suitability to the requirements of the
body, the availability of support services, and the compatibility to existing equipment
and delivery terms.
The requirement that a local government award a contract to the lowest
responsible bidder does not require the governmental body to award the contract to
the lowest bidder. The Illinois Supreme Court has opined, “In proper circumstances a
contract may be awarded to one who is not the lowest bidder, where this is done in the
public interest, in the exercise of discretionary power granted under the laws, without
fraud, unfair dealing, or favoritism, and where there is a sound and reasonable basis
for the award as made.”
Upon review of Illinois case law, we were unable to find any cases that sanction
or proscribe using the specifications of a particular product to design a bid. It is also
important to note that the cases analyzing whether the award of a contract to a higher
bidder was appropriate are not cases where some type of criminal contract
interference is alleged, and are instead civil actions brought by losing bidders.
It appears that Algonquin Township had a longstanding relationship with Elgin
products and was familiar with their parts and maintenance requirements. After
testing the Elgin hybrid street sweeper, this was the product the Road District
employees, not necessarily Miller, desired as the machine most conducive to operation
and maintenance. In compliance with the bidding procedures, the Road District
publicly sought bids and publicly shared the bid specifications.
Though we did learn that Standard Equipment had donated to Miller’s
campaign committee for Road Commissioner, our investigation uncovered no evidence
that Miller personally benefited, either through a bribe or other favor, from the
purchase of the Elgin hybrid model, that he engaged in fraud or unfair dealing, or
improperly conveyed privileged information. While we recognize that the campaign
donations and the resulting business are unsavory, we do not believe that this in light
of the fact that it was ultimately the Road District employees that lobbied for the Elgin
hybrid model, provides sufficient evidence to charge criminally.
ii. Sale of 2012 Street Sweeper
The sale of the street sweeper appears lawful. Though 605 ILCS 5/6-201.17
states that in “single township road districts, sale of road district property…shall be
subject to elector approval as provided by 605 ILCS 1/30-50,” section 30-50 states that
electors “may make all orders for the…sale…of the township’s corporate property.
Accordingly, electors are under no mandatory duty to “make orders” for the sale of
Township property. The question arises, if they “may” sell township property, but
neglect or opt not to do so, how can property in need of sale be sold? Section 30-50(d)
provides that “at any time…the road district may lease or sell personal property by a
vote of the township board or request of the township highway commissioner.” When
read together, sections 201.17 and 30-50 impart authority on both the township board,
highway commissioner, and electors to sell property.
In this case, Miller “requested” that the property be sold. While there was no
“sale notice” published in accordance with section 30-50(d), the Township was likely
not required to make such a notification. Rather, as section 30-50(d) goes on to
provide, “the notice and competitive bidding procedure shall not be followed when real
or personal property is declared surplus by the…highway commissioner” and sold to
“another government body.” There is no statutory procedure set forth for how
“property” is declared “surplus” or that such a declaration has to be made formally or
in writing. However, the evidence would support the fact that the 2012 sweeper was
surplus. At the time it was sold, it was not being used by the Road District, which had
already replaced it by purchasing the Elgin Hybrid model.
IV. Allegation: Miller was improperly paid unused sick time.
A. Summary of the Facts
On February 28, 2017, Miller lost his bid for reelection for Algonquin Township
Highway Commissioner. It appears that in April 5, 2017, Miller filed the Highway
Commissioner’s Annual Report.
On April 12, 2017, Miller made a demand of $47,381.84 in the form of a bill at
the Algonquin Township’s Annual Meeting for payment of unused sick pay. The sick
pay was purportedly earned between 1972 and 1993 while working as an employee of
the Road District. The matter was heard during the portion of the meeting designated
on the agenda as “Audit of Bills.” The agenda did not specify or itemize the bills to be
audited. Based on the April 12, 2017 minutes and after Miller presented the demand
for sick pay, Trustees Emery and Cardelli moved to delay the matter for further
inquiry. Thereafter, Miller explained to the Board how the sick time policy worked
and represented that the issue was fully researched by Jim Kelly, Township attorney.
Kelly, who was present for the meeting, concurred with Miller’s explanation. A brief
recess was taken to allow Miller to gather documentation in support the sick time
Thereafter, Miller submitted to the Board a memorandum purportedly authored
by Tom Schober, former Algonquin Township Supervisor. Below is the memorandum:
During the course of the investigation, we received a copy of the original February 25,
1997 Schober memorandum. The document is identical to the above except that the
heading and title are properly aligned.
Miller also submitted a memorandum dated April 7, 2017. This memorandum
does not identify an author and is as follows:
Upon presentation of these documents, the Board voted against removing Miller’s sick
pay claim from the monthly bills, thereby approving the lump sum payout.
No record of the purported liability of $47,381.84 due and owing to Miller is
found in any prior annual report of Miller while serving as highway commissioner.
During the course of our investigation, a letter was obtained from Kelly to
Miller dated March 22, 2017. Below is a copy of this letter:
The Illinois Municipal Retirement Fund (IMRF) does not prohibit a government
employer from paying out unused sick time. In lieu of a payout, however, an employee
may request that IMRF provide a pension credit for unused sick time with 20 unused
sick days being equal to one month of IMRF credit. During the course of our
investigation, we learned that Miller had not sought to convert his prior sick time into
B. Relevant Law
605 ILCS 5/6-201.15
Annually make a report in writing, showing the following:
(1) The amount of road money received by the district and a full and detailed
statement as to how and where expended and the balance, if any, unexpended.
(2) The amount of liabilities incurred and not paid (any undetermined
liabilities shall be estimated) and the determined or estimated amount owing to
each creditor, who shall be named.
(3) An inventory of all tools having a present value in excess of $200,
machinery and equipment owned by the district, and the state of repair of these
tools, machinery, and equipment.
(4) Any additional matter concerning the roads of the district the highway
commissioner thinks expedient and proper to report.
Forgery, 720 ILCS 5/17-3
(a) A person commits forgery when, with intent to defraud, he or she knowingly:
(1) makes a false document or alters any document to make it false and that
document is apparently capable of defrauding another; or
(2) issues or delivers such document knowing it to have been thus made or
(3) possesses, with intent to issue or deliver, any such document knowing it
to have been thus made or altered; or
(4) unlawfully uses the digital signature, as defined in the Financial
Institutions Electronic Documents and Digital Signature Act, of another; or
(5) unlawfully uses the signature device of another to create an electronic
signature of that other person, as those terms are defined in the Electronic
Commerce Security Act.
(c) A document apparently capable of defrauding another includes, but is not limited
to, one by which any right, obligation or power with reference to any person or
property may be created, transferred, altered or terminated. A document includes any
record or electronic record as those terms are defined in the Electronic Commerce
Security Act. For purposes of this Section, a document also includes a Universal Price
Code Label or coin.
(c-5) For purposes of this Section, “false document” or “document that is false”
includes, but is not limited to, a document whose contents are false in some material
way, or that purports to have been made by another or at another time, or with
different provisions, or by authority of one who did not give such authority.
First, there is insufficient evidence to charge Miller with forgery. As for the
document Miller presented from Schober, the only person we were able to identify
capable of verifying or repudiating the authenticity of the letter, has since passed
away. While we recognize that the copy appears to be somewhat positionally skewed,
a likely explanation is some type of copying malfunction. Moreover and upon
comparison with Schober’s signature elsewhere, it does not appear the signature on
the document in question is an imitation.
As for the memorandum with no author, there is no evidence that the
memorandum contains information known by Miller to be “false” or fraudulent.
Moreover, Miller never asserted who the author of the memorandum was nor that it
was written by a person with some type of special knowledge or authority over the
Even if the untitled April 7, 2017 Memorandum presented by Miller to the
Board were not genuine, there still remains the lingering question of whether Miller
had an “intent to defraud” sufficient to establish forgery. To act “with intent to
defraud means to act knowingly, and with the specific intent to deceive or cheat, for
the purpose of causing financial loss to another or bringing some financial gain to
oneself…” On March 22, 2017, Miller received a letter from Kelly indicating that
Miller was legally entitled to the sick pay. At the Annual Meeting, Kelly confirmed
that Miller was entitled to the sick time payout in the amount requested. As such,
Miller had a good faith basis to believe he was owed a payout for unused sick time.
Even if a document proves inauthentic or insufficient to establish Miller’s claim to sick
pay, he reasonably could argue that he had no intent to “deceive or cheat” the Board
because he believed, based upon the advice of the Township’s attorney, that he was
entitled to the sick pay.
Second, we are unable to find any law or other authority conclusively
prohibiting Miller from receiving sick pay. Even if Miller was not legally entitled to
the sick time payout, we believe Kelly’s letter forecloses felony prosecution. As alluded
to, criminal charges require not just proof that an act violates the law, but proof of a
mind-state. In other words, proof that the person acted “knowingly” or “intentionally.”
In this case, it cannot be said beyond a reasonable doubt that Miller “knowingly”
misapplied funds (Misapplication of Funds), “knowingly” took unauthorized possession
of the sick pay (Theft), or “knowingly” performed an act which he knew was forbidden
by law (Official Misconduct). As discussed, Miller, after making a request, received a
letter from the Township’s attorney sufficient to establish Miller’s belief that he was
lawfully authorized to receive the payout from the Road District Fund in one lump
Further, there is no evidence that Miller attempted to duplicate the benefit from
his unused sick time by seeking pension credit with IMRF. That said, we understand
that this issue is subject to an ongoing civil lawsuit. We believe that this is the
appropriate forum to resolve this dispute as Kelly’s letter forecloses criminal
Third, it unclear whether 605 ILCS 5/6-201.15 required Miller to itemize
unused sick time in the 2017 Annual Report. There is no definition of “liability” in the
Illinois Highway Code (including in Article 6, Administration of Township and District
Roads) or case law clarifying what constitutes a liability for purposes of the annual
report. Upon comparison to other annual reports submitted by other highway
commissioners, it does not appear as though it is a common practice to list unused sick
pay as a liability.
As further guidance, we considered the Comprehensive Annual Financial
Report for the State of Illinois, produced by the Illinois Comptroller’s Office. In the
report, the Comptroller gives an overview of the proper way to account for sick time
and vacation liabilities. She notes that a liability for these amounts is reported only if
the liability has matured, for example, as a result of an employee resignation or
retirement. Assuming Miller’s sick time had not matured in 1993 when he assumed
the position of Highway Commissioner within the Road District, one could argue in
good faith that neither had it matured by March 31, 2017, the end of the reporting
period for the 2017 Annual Report. Rather, Miller had not yet retired, resigned, or
been succeeded by his predecessor.
Even if one interprets Miller’s sick time as a liability, there remains the open
question of whether he has to report all outstanding liabilities in an annual report or
only those liabilities incurred during the fiscal year to which the report pertains.
While the plain language of the statute could be reasonably interpreted either way, we
believe it is certainly reasonable to conclude that the annual report need only contain
annually incurred liabilities. We find support for this position in the “General
Administrative Duties of the Township Highway Commissioner.” This publication is
prepared and published by the Illinois Department of Transportation Bureau of Local
Roads and Streets and appears to be distributed, revised, and prepared in conjunction
with the Illinois Technology Transfer Center, the Illinois Association of County
Engineers, and the Township Officials of Illinois. With respect to the annual reports
made by highway commissioners in accordance with Section 6-201.15 of the Illinois
Highway Code, the manual strongly suggests that a highway commissioner in his
annual report must only report those liabilities “incurred during the year and not paid
to whom the debts are owed.” One could reasonably maintain that Miller was not
required to report the sick time payout in the 2017 annual report as this “liability” was
incurred in 1993.
Generally speaking, a prosecutor has lost her case before it has even begun if
there is a reasonable dispute as to whether the alleged act is even a crime, let alone
whether the defendant performed the act.
Even if the law is interpreted as having required Miller to have reported the
sick time as a liability in the 2017 Annual Report, a single accounting failure standing
alone generally does not warrant felony prosecution. While Miller may have left his
sick time claim off the Annual Report, there is no indication he did so for nefarious
purposes or to conceal this liability. Rather, he publicly presented the claim to the
Township Board at the Annual Meeting a little more than a week later. Though the
Trustees entertained a motion to delay approving the sick time subject to further
inquiry, they were ultimately satisfied after inspecting the disputed documentation
and hearing from Miller and Kelly that the claim should be paid.
With respect to any Open Meetings Act violation, the State’s Attorney’s Office
takes no position as this is outside the scope of our investigation. If a violation
occurred, any liability would be limited to those responsible for creating the agenda
and running the meeting.
V. Allegation: Miller deleted public files from his Algonquin Township
A. Summary of the Facts
On January 15, 2018, the McHenry County State’s Attorney’s Office was
emailed a copy of a report authored by Garrett Discovery entitled, “Report for
Algonquin Township Highway Department.” The document is a summary of a forensic
analysis of the Algonquin Township server. In the report, Garrett concludes that a
user logged onto the server on April 2, 2017 and installed an anti-forensic software
package designed to delete data, executed that program, and thereby permanently
deleted a number of files. Additionally, a user took action to remove the user profile of
“commissioner” and “manager” from the “profile redirection folders.”
During the course of the investigation, we learned that Keith Seda was the IT
professional accessing the server on April 2, 2017. During an interview, Seda stated
that he worked for a company called IT Connection, Inc., which was an IT provider for
small businesses who do not have their own IT department. Seda stated further that
the Road District has been a long time client. Over the years, Seda and IT Solutions
have assisted the Road District with new phones, new computers, and all other IT
In response to the alleged “wiping” of documents from Road District computers,
Seda stated that after Miller lost the primary election in March of 2017, Miller called
Seda and requested that Seda assist the Road District in getting computers set up for
the new highway commissioner. Seda stated further that Miller informed Seda that
Miller had received information that the new highway commissioner would be
conducting a forensic audit of the computers and Miller wanted to ensure all his
personal documents and personal information were removed from the computers.
Seda stated further that, thereafter, he responded to the Road District and assisted
Robert and Anna May Miller in removing personal documents from Road District
computers. Seda indicated that the Millers were aware of the need to retain
documents related to Township business and wanted to ensure that any and all
business documents were saved to the server. Seda commented that they took this to
a “ridiculous” level, even saving a Word document from 1997 that read “back in 15
minutes” that was once hung on an office door. Once the saving of business documents
was complete, Seda assisted Robert and Anna May Miller in deleting their personal
files through the use of an anti-forensic software package, CCleaner.
Seda also indicated that he deleted the user profiles for Robert and Anna May
Miller and created new profiles for the new highway commissioner to use. Those new
profiles were titled “Highway Commissioner” and “Officer Manager.” Seda stated that
the backing up of business files and wiping of personal information was a “typical”
process when someone gets a new computer or separates from employment. Seda
stated that he did not find anything suspicious about his interactions with the Millers
or his work on the Road District’s behalf.
Seda stated further that he removed the hard drives from both computers and
installed new ones. Seda stated further that he left the removed hard drives in the
possession of Miller. Seda stated further that these hard drives were at the end of
their useful life and should have been discarded.
During a second interview with Seda, he accessed the Township’s shared server
and showed us 4,184 files present in the “Road Administration” folder. He indicated
that this was the folder he used to store the files from Anna May and Robert Miller’s
computers. Seda stated further that the current Highway Commissioner and his
assistant were trained by Seda on how to access the files. According to Seda, the
current Highway Commissioner’s assistant exclaimed “look, here are all the missing
files” during the training.
B. Relevant Law
Local Records Act, 50 ILCS 205/4(a)
Except as otherwise provided in subsection (b) of this Section, all public records made
or received by, or under the authority of, or coming into the custody, control or
possession of any officer or agency shall not be mutilated, destroyed, transferred,
removed or otherwise damaged or disposed of, in whole or in part, except as provided
by law. Any person who knowingly, without lawful authority and with the intent to
defraud any party, public officer, or entity, alters, destroys, defaces, removes, or
conceals any public record commits a Class 4 felony…
Local Records Act, 50 ILCS 205/3
Except where the context indicates otherwise, the terms used in this Act are defined
as follows: … “Public record” means any book, paper, map, photograph, born-digital
electronic material, digitized electronic material, electronic material with a
combination of digitized and born-digital material, or other official documentary
material, regardless of physical form or characteristics, made, produced, executed or
received by any agency or officer pursuant to law or in connection with the transaction
of public business and preserved or appropriate for preservation by such agency or
officer, or any successor thereof, as evidence of the organization, function, policies,
decisions, procedures, or other activities thereof, or because of the informational data
Local Records Act, 50 ILCS 205/9
Nonrecord materials or materials not included within the definition of records as
contained in this Act may be destroyed at any time by the agency in possession of such
materials without the prior approval of the Commission. The Commission may
formulate advisory procedures and interpretations to guide in the disposition of
There is insufficient evidence to charge Miller for destroying records. It is not
illegal under the above statutory authority to destroy personal documents unrelated to
public business without prior approval. Rather, only those documents “made,
produced, executed or received by any agency or officer pursuant to law or in
connection with the transaction of public business” must be retained. In view of the
fact that the documents deleted are irretrievable, establishing that public documents
were deleted would be impossible.
1) During Miller’s tenure as highway commissioner, he registered his
personal vehicles on the Road District’s I-PASS account;
2) On May 25, 2017, one of Miller’s personal vehicles accessed the Road District’s I-PASS account; and
3) On October 29, 2017, Miller electronically registered personal vehicles
on the Road District’s I-PASS account.
A. Summary of the Facts
Based on the review of records returned by the Illinois Tollway regarding the IPASS
usage for the corporate account of Algonquin Township Road District in the
name of Robert Miller, three personal vehicles belonging to the Miller family were
registered to the Algonquin Township I-PASS account: license number BMG603,
Acura registered to Anna May Miller; license number 7379126, Corvette registered to
Miller, and license number 823775S, a Ford F250 registered to Miller. This was in
addition to 16 other vehicles all bearing municipal plates and belonging to the Road
District. Based on interviews of Township staff, Miller regularly used the Ford F250
for work purposes.
During Miller’s tenure, I-PASS had provided six transponders to the Road
District. Any of those transponders could have been on-boarded with any of the
registered vehicles. If a vehicle passes through an I-PASS checkpoint with a
transponder in vehicle, the I-PASS checkpoint disarms and no picture or other data
identifying the vehicle is taken. The Illinois Tollway does not retain any information
or data regarding vehicles passing through I-PASS checkpoints with a transponder in
the car. If, conversely, a vehicle passes through the checkpoint and no transponder is
detected, the system takes a picture of the license plate. If the license plate is a
registered vehicle, the “virtual transponder system” activates, no ticket issues, and the
account is charged as if a transponder was in the car. The Illinois Tollway “virtual
transponder” system does retain records of the license plate and date and time that
the vehicle passed through the checkpoint.
Between 2012 and 2016, the “virtual transponder” system detected one vehicle
owned by the Miller family, license number MG603, passing through checkpoints on
various dates. The total cost was $8.40. After Miller’s term as highway commissioner
expired, only one of the vehicles registered to the Miller family, license number
823775, was detected on the virtual transponder system. This occurred on May 25,
2017. The cost incurred was $0.45. Please note, this cost was incurred by Miller’s
vehicle after his term in office had expired.
On July 12, 2017, Gasser contacted the Illinois Tollway, changed the billing
information to a new credit card, and removed the vehicles belonging to Miller’s
family. That same day, someone, presumably Miller, accessed the automated system,
restored Miller’s contact information, requested a new transponder, and placed the
account on auto-pay with a personal credit card.
On October 29, 2017, the Illinois Tollway automated system is accessed online,
again presumably by Miller. He added a motorcycle, license number 2220766 and
reactivated license number 739126. One hour later, Gasser contacted the Illinois
Tollway and changed all vehicles registered to Miller expired and another municipal
plate is registered to the account.
Our investigation uncovered no evidence that the Acura with license plate
MG603 was not being operated for Road District purposes when it passed through IPASS
checkpoints and incurred $8.40 in charges over the course of four years.
As for the kerfuffle over the I-PASS accounts after May, we view this as more
political horseplay than a crime. The I-PASS account was registered in Miller’s name.
After Miller left office, the I-PASS account was not immediately adjusted by any Road
District official to remove Miller as the registered account holder, remove his personal
vehicles, or change the passwords. Rather, it was not until July, 2017 that the
appropriate changes were made. On July 12, 2017, when Miller, as the registered
account holder, received notice that his vehicles had been removed on what he deemed
his account, he sought to correct the situation by reactivating the account in his name
and paying for the account with his own credit card.
On October 29, 2017, Miller, likely realizing that his personal vehicle with
license number 7379126 was no longer active, sought to reactivate it and, again, used
his own money to pay the I-PASS bill. Gasser, also on the account, received notice of
the changes and, finally, took the appropriate steps to change the password and claim
the account exclusively for the Road District.
VII. Allegation: Miller improperly supplied the Illinois Railway Museum (IRM)
with Road District salt.
A. Summary of the Facts
Dave Diamond was the Riley Township Highway Commissioner between 2014
and 2017 and facilities director for the Illinois Railway Museum (IRM). Several years
ago, the IRM began having a holiday event, the Happy Holiday Railway, where Santa
would visit children on a train. Diamond stated that around December of 2015, the
IRM decided to expand the event. As such, the IRM believed they were in need of road
salt for the grounds where the event was to be held to ensure safety. Diamond stated
further that he requested to purchase 5 yards of salt from Road District. Diamond
stated further that Miller indicated that he would donate the salt. Diamond stated
further that the estimated cost of this salt was around $200. Diamond stated further
that the first year IRM received the donation of salt, the weather was mild and much
of the salt was left over. Diamond stated further that Miller informed Diamond to
provide the salt to Coral Township.
In 2016, Diamond stated that he again requested that the Road District provide
salt for the IRM holiday event and Miller agreed. Due to the inclement weather,
Diamond stated further that he requested 6-7 yards of salt, the cost being $300-$500.
Diamond stated further that Miller agreed and donated the salt to the IRM.
During the course of our investigation, we uncovered an email from Diamond to
Miller, dated December 1, 2014. In the email, Diamond states, “[i]t’s my annual
request to see if you would be so kind once again to donate a load of salt for the IRM
Christmas event.” That same day, Miller responds by email, “[y]es, Dave we would
like to make that donation again.”
In 2014, 2015, and 2016, no resolution was passed declaring any of the
Algonquin Township Road District’s property surplus for purposes of donating it to the
B. Relevant Law
60 ILCS 1/30-53
The majority of electors present at an annual or special town meeting may declare
property of the township to be surplus for purposes of donating the property to a
historical society or other not-for-profit corporation as provided in Section 80-75.
60 ILCS 1/80-75
Any property declared to be surplus by the electors under Section 30-53 may by
resolution of the town board of trustees be donated to a historical society or other notfor-profit
corporation. The resolution shall set forth the historical society or other notfor-profit
corporation’s intended use of the property, and the board of trustees may
require that the transfer be subject to a reversion of the property if the property is no
longer used for its original intended use by the historical society or other non-for-profit
organization. The resolution shall authorize the township supervisor to execute all
documents necessary to complete the transfer of the property.”
Official Misconduct, 720 ILCS 5/33-3
See section I.
Theft, 720 ILCS 5/16-1
See section I.
Prior to Miller donating Road District salt to the IRM, the electors had not
declared it surplus. While the evidence here may be sufficient to charge Miller with
Official Misconduct (performs an act in excess of his lawful authority) and theft
(obtains unauthorized control over property), we do not believe such charges to be in
the public interest. Drawing upon the aforementioned factors set forth by the
American Bar Association, there is no indication that Miller’s conduct resulted in
anything beyond de minimis public harm. While it is true that taxpayers in Algonquin
Township may have been deprived of the benefit of a few of the thousands of yards of
salt ordered each year, this did not risk or result in a shortage of salt or jeopardize
There is no evidence that Miller derived a personal benefit for the salt provision
in the form of a kickback, campaign donation, or other favor. There is no evidence that
Miller had any ulterior motive beyond his desire to modestly assist a non-profit
organization in making a public event for children and families a success. Nor is there
any indication that had Miller sought elector approval, it would have been denied.
Moreover, we are not convinced that children and families enjoying a holiday event is
the type “personal benefit” the legislature had in mind when it passed subsection (a)(3)
of the Official Misconduct statute. While Miller’s actions might be deemed “unlawful”
upon a mechanical application of the law, we believe his actions here are more an
oversight or indiscretion resulting from poor internal controls as opposed to selfserving
public corruption wherein the People would have an interest in bearing the
expense of a prolonged felony prosecution.
Further, the Township and/or Road District has an adequate civil remedy for
any improper distribution of salt.
VIII. Allegation: Miller improperly purchased two plane tickets to New Orleans in
2008 for individuals not employed with the Road District.
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. The names on these tickets
are Rebecca Lee and what is believed to be her child. It should be noted that Lee is
the daughter of Miller and wife of Road District employee Derek Lee. These plane
tickets were approved by the Trustees.
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.
B. Relevant Law
Misapplication of Funds, 720 ILCS 5/33E-16.
See section I.
Official Misconduct, 720 ILCS 5/33-3
See section I.
Theft, 720 ILCS 5/16-1
See section I.
We are hard pressed 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.
The general limitation on felony prosecutions extends to 3 years past the date of
the offense. While this matter would be generally barred, there is an exception for any
offense based upon misconduct in office by a public officer or employee. Pursuant to
720 ILCS 5/3-6,
A prosecution for any offense based upon misconduct in office by a public
officer or employee may be commenced within one year after discovery of
the offense by a person having a legal duty to report such offense, or in
the absence of such discovery, within one year after the proper
prosecuting authority becomes aware of the offense. However, in no
such case is the period of limitation so extended more than 3 years
beyond the expiration of the period otherwise applicable.
This exception allows the State to commence such a prosecution within one year
after discovery of the offense, however, in no case more than 3 years beyond the
expiration of the period otherwise applicable; the period otherwise applicable being 3
years. In other words, one year beyond the date of discovery of the offense, but in no
case more than 6 years from the date of the offense.
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.
IX. Allegation: Miller purchased a Ford F250 with Township funds and without
following the appropriate bidding procedures and, thereafter, retained the
truck after leaving office.
A. Summary of the Facts
The truck in question is a 2005 Ford F250 Super Duty Black Extended Cab
Pickup bearing Illinois registration 823775S-B. Based on a review of the Secretary of
State records pertaining to the truck, it was purchased from the Al Piemonte Ford
dealership in Arlington Heights, Illinois on July 5, 2005 by a purchaser unrelated to
Miller. Soon thereafter, the registration was changed from Illinois to Wisconsin. In
March of 2008, the truck was repossessed by Landmark Credit Union. Landmark
Credit Union sold the truck to American Auto Sales Inc., located in Algonquin, Illinois
on April 2, 2008.
On November 26, 2008 the truck was sold to AMM enterprises,
Inc/Robert Miller and the vehicle has remained titled and licensed to Miller since.
There is no indication that at any time this vehicle was owned by Algonquin
Township Road District or purchased with Road District or Township funds.
The allegation is unfounded.
X. Allegation: Miller purchased Equipment in 2015 in violation of competitive
A. Summary of the Facts
In 2015, the Road District purchased two John Deere 4066R compact Utility
Tractors and two John Deere MX5 Lift Type Rotary Cutters (lawnmowers). The total
purchase price for each tractor and each rotary cutter was $43,275 and $2,548,
respectively. Collectively, the total price of the purchase was $91,360 less $18,000 due
to the trade in of two 2005 utility tractors and two mowers.
Of note, on the purchase orders, there is a reference to the Illinois Association of
County Board Members (IACBM), member classification 12-04-00777-A.
The IACB is a non-profit cooperative made up of hundreds of smaller units of
government in Illinois. One of the programs run through the IACBM is the John
Deere Discount Program. This Program provides a competitive bid process whereby
one Illinois unit of government solicits bids on behalf of others for building and
maintenance equipment using an authorized competitive bidding process.
B. Relevant Law
Illinois Government Joint Purchasing Act, 30 ILCS 525/1
…”Governmental unit” means State of Illinois, any State agency as defined in Section
1-15.100 of the Illinois Procurement Code, officers of the State of Illinois, any public
authority which has the power to tax, or any other public entity created by statute.
Illinois Government Joint Purchasing Act, 30 ILCS 525/2
(a) Any governmental unit, except a governmental unit subject to the jurisdiction of a
chief procurement officer established in Section 10-20 of the Illinois Procurement
Code, may purchase personal property, supplies and services jointly with one or more
other governmental units. All such joint purchases shall be by competitive solicitation
as provided in Section 4, except as otherwise provided in this Act. The provisions of
any other acts under which a governmental unit operates which refer to purchases and
procedures in connection therewith shall be superseded by the provisions of this Act
when the governmental units are exercising the joint powers created by this Act.
Illinois Government Joint Purchasing Act, 30 ILCS 525/3
Under any agreement of governmental units that desire to make joint purchases
pursuant to subsection (a) of Section 2, one of the governmental units shall conduct
the competitive procurement process. Where the State of Illinois is a party to the joint
purchase agreement, the appropriate chief procurement officer shall conduct or
authorize the competitive procurement process. Expenses of such competitive
procurement process may be shared by the participating governmental units in
proportion to the amount of personal property, supplies or services each unit
When the State of Illinois is a party to the joint purchase agreement pursuant
to subsection (a) of Section 2, the acceptance of responses to the competitive
procurement process shall be in accordance with the Illinois Procurement Code and
rules promulgated under that Code. When the State of Illinois is not a party to the
joint purchase agreement, the acceptance of responses to the competitive procurement
process shall be governed by the agreement.
The supplies or services involved shall be distributed or rendered directly to
each governmental unit taking part in the purchase. The person selling the personal
property, supplies or services may bill each governmental unit separately for its
proportionate share of the cost of the personal property, supplies or services
The credit or liability of each governmental unit shall remain separate and
distinct. Disputes between contractors and governmental units or qualified not-forprofit
agencies shall be resolved between the immediate parties.
With respect to the purchase of the John Deere tractors and mowers by the
Road District, the matter was competitively bid out of Rock Island County, Illinois on
March 14, 2014 in accordance with the Illinois Government Joint Purchasing Act. The
aegation is unfounded.
XI. Conclusion and Recommendations
Though not appropriately redressed through criminal charges, this report has
plainly set forth spending and decision-making that do more than merely create an
appearance of incompetence, guile, and impropriety. We believe, however, that these
failures go beyond any individual and point to a larger, systemic breakdown.
First, the statutory foundation upon which township government is built is
During the course of our investigation, we extensively reviewed the
Township and Highway Codes and found them to be entirely unclear, selfcontradictory,
and interminable. We are skeptical that anyone involved, whether a
highway commissioner, trustees, or electors, can reasonably acquire a straightforward
understanding of their duties and responsibilities under these disjointed and
We are specifically dismayed that the Highway Code bestows such unfettered
discretion on the highway commissioner over road district operations and the acutely
sensitive area of spending. As one employee commented during an interview, “the
only difference between the highway commissioner and God is that the highway
commissioner gets a truck.”
Second, we have concluded that Algonquin Township and its elected officials
failed to impose and enforce the most basic of internal controls that could have
prevented many of the excesses described herein. Lutzow’s shocking description of the
Township’s spending policy, “everyone just did [what] they thought was correct” amply
sums up its deficiencies.
Third, we believe trustees should have approached their responsibility as
auditors more diligently. In township government, trustees are one of the few limits
on road district spending. They have authority, should they choose to exercise it, “to
examine and audit the township and road district accounts before any bills are
paid…”, “examine the accounts of the…commissioner of highways….for all moneys
received and distributed by them…”, and “examine and audit…all charges and claims
against their road district…and…the compensation of all township officers.” If
trustees were not satisfied with the amount of access to or time afforded to review
these bills and ensure the propriety of spending, they should have demanded the
necessary process changes.
Lastly, we believe that the off-year Township elections that feature notoriously
poor voter turnout do not adequately allow the disinfectant and quality assurance
properties of the democratic process to operate.
If it has not already, we recommend that Algonquin Township:
1. Establish a detailed policy for payment or reimbursement of all expenses in
keeping with the Internal Revenue Service’s “Fringe Benefits Guide, Office of
Federal, State, and Local Governments.” Have the Highway Commissioner
adopt said policy and pass a resolution or ordinance prohibiting Trustees or any
other Township official from approving expenses that are inconsistent with this
2. Create a detailed policy for approving all other spending by setting forth all
possible categories of spending deemed appropriate for “road purposes.” Have
the Highway Commissioner adopt said policy and pass a resolution or ordinance
prohibiting Trustees or any other Township official from approving expenses
that are inconsistent with this policy.
3. Prohibit Trustees or any Township official from approving any Road District
employee compensation that is not specifically provided for in an employee’s
written and/or labor contract and in accord with the Road District’s Personnel
4. Pass and adopt a purchasing ordinance setting forth the detailed procedures for
competitive bidding and non-competitive procurements and entering into
professional service contracts. A good example of such an ordinance is the
McHenry County Purchasing Ordinance.
5. Pass an anti-nepotism resolution or ordinance that is adopted by the Highway
6. Establish a process to ensure that all Road District bills and expenses accrued
but not yet paid along with a written explanation of the nature and purpose of
the expense are accessible to Trustees at any time.
7. Carefully consider options to abolish the Road District and/or Township through