McHenry County Blog

In planning to attend the McHenry County Mental Health Board meeting Monday, I went to the County web site to check out the time.

The Mental Health Board is a separate tax district and I’m glad that they are trying to get their meeting posted where people might tend to look for meetings for an entity called the McHenry County Mental Health Board.

(The County Board appoints its members and gets to vote up or down on its budget.  Otherwise, the Board is virtually independent, much like the Conservation District Board.)

There is no requirement for posting meetings on the County website, but those looking for Monday’s events, including myself, might be excused for being irritated at not being able to find Monday’s Ethics and Compliance Committee meeting anywhere on the internet.

I also went to the 708 Board’s calendar.  Nothing was listed there about the Ethics and Compliance Committee meeting either, as you can see below:

After discussion with the 708 Board’s attorney Frank Gosser, I conclude that the 5 o’clock meeting was not an “illegal meeting,” as I charged during the Public Comment period of the 6 PM Board meeting, but the notice given certainly would not win any awards for transparency. I apologize for assuming lack of posting on the internet would make the Committee’s meeting a violation of the Open Meetings Act.

In any event, I figured the meeting would be at 7 and saw on both web sites that it was at 6.

Then I got a tip that there was a 5 o’clock meeting, which you will notice is not on either of the above calendars.

I understand that the Mental Health Board staff is trying to make sure such meetings are posted.  I hope they succeed soon.

The Ethics and Compliance Committee meeting was an interesting one, the most important part of which concerned new due process rules.

The goal of the new Audit and Appeal Policy, which was adopted at the 6 PM Board meeting, is to protect both the rights of the Board and the agencies who received primarily real estate tax financial support from it.

Details in a forthcoming article.

But let me get back to transparency.

It seems to me that a local government like the Mental Health Board should provide information about upcoming meetings, including agendas.  That did not happen with the Committee meeting’s agenda.

I checked out the agenda for the Board meeting at 6 and found the following under “New Business:”

Perhaps you can figure out what the last two items refer to, but I couldn’t:

D. 201208-77 Executive Director Contract – FOR ACTION
E. 201208-78 Independent Contractor Agreement – FOR ACTION

I figured the Board was about to hire a new Executive Director to replace Sandy Lewis in the first item above.

The second one? I had no idea.

It turns out that the Executive Director item was the resignation of Sandy Lewis.

This is the way McHenry County College handles a resignation on its August 23rd agenda:

“Accept Resignation of Larry West and Approve Separation Agreement, Board Report #12-199″

Quite clear, wouldn’t you say?

And the independent contractor agreement?

What was that all about?

It contains the number “201208-78″ and there was a document that attorney Gosser was filling out after the meeting, but the Mental Health Board seems to have made the deliberate decision not to share this with people who might be home on the internet.

Earlier in the evening Deputy Director Robert Lesser was feted with a cake and recognized for his service to the agency, even presented with a mock-up of a plaque to be produced later.

He was obviously moved by the presentation.

It turned out the independent contractor mentioned in the agenda is him.

It seems with three of the top four staffers leaving more or less simultaneously, Lesser is the only one available to do the end-of-year paperwork.

I listened to the Board’s discussion, but never did I hear the terms of the unposted contract.

So, after adjournment, I asked attorney Gosser and was told Lesser would be paid $100 an hour with a maximum of 499 hours. A typical work year has about 2000 hours. (Lesser earned $97,645.86 a year in the latest salary rack-up.)

Friday night my wife and I were discussing the appropriateness of putting employees on administrative leave and still paying them.

This came up because of the apparently discretionary power McHenry County Sheriff Keith Nygren has to keep employees on the payroll after they have been suspended for having been arrested on felony warrants.

The case in point is Sergeant Greg Pyle, who was put on administrative leave–paid administrative leave–the money after he was arrested on ten counts of Criminal Predatory Sexual Assault.

In answer to my request for “documents explaining why Pyle is still on the payroll,” the FOI Office for the Sheriff’s Department replied,

“We do not have any document(s) that would supply an answer to your question in the second part of your request.”

That seems to mean that McHenry County has no personnel policy that gives direction when a county employee is arrested for a felony.

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After writing this, there were a couple of comments on the original article about Pyle’s still being on the public payroll.  I reprint them below because I think they add to the debate.

Justin says
03/10/2012 at 9:46 am

This is not a Nygren decision or a McHenry Co decision; it is based upon public employee law.

Until PYLE is convicted, and I’m sure he will be, he can not be subject to without pay status which would summarily be punishment.

Like it or not, employee law prevents agencies from yanking the pay of those accused of crimes.

He also can not be interviewed subject to an internal investigation due to his pending criminal case.

Doing such would jeopardize his Fifth Amendment rights and also goes counter to other disciplinary act issues.

Rather than risk the criminal charges being thrown out, he must remain on paid status.

Nygren could ask he be placed on unpaid status, but there are legal precedents which say that doing so prejudices the case and economic award have been issued for denial of pay.

The Chicago cop that beat the snot out of that bartender was on pay status right up to the day he was fired and that was AFTER the guilty plea.

FYI…get a copy of the department flow chart and you’ll see that with the exception of a couple specialty units, there are far more than 2-3 employees per supervisor especially on patrol.

Not all supervisors are scheduled to work on the same days; so if the shift shows THREE Sgt’s, only two would be working and one off.

Add in vacation and personal time off and often it is only ONE supervisor running an entire shift.

You sound sour grapes.

really? says:
03/10/2012 at 4:24 pm (Edit)

Justin,

You are a bit off.

Public employee law does not forbid government from interviewing Pyle.

MCSO is not the investigating body here-I thought ISP was (as it should be to prevent a conflict of interest).

Under public employee law (see Garrity Rights), MCSO can (and I would say should) conduct a separate, administrative internal investigation into Pyle’s conduct.

Pyle could be compelled to testify and ordered to answer each and every question (which would exclude the answers from being used in the criminal case).

There are Due Process considerations because Pyle is employed by a government body and any sanction taken against him must be Constitutionally sound.

Now, I would argue that Pyle’s indictment would be a substantial step towards civilly proving his “guilt”-(since that is the burden for termination-even for a union protected employee) and enough to move him to non-compensated status.

Justin says:
03/10/2012 at 10:59 pm

@ Really…. Correct, Garrity does pertain to compelled statements and on its face seems to be a no brainer.

The Garrity Rights or Garrity Rule states that a department member may be compelled to give statements under threat of discipline or discharge but those statements may not be used in the criminal prosecution of the individual officer however it becomes a very volatile situation in that there is a high risk that anything learned under Garrity could affect the criminal prosecution.

Garrity is good for the employee, bad for the prosecution.

Please go review U.S v Oliver North [United States v. North, 910 F.2d 843 (D.C. Cir. 1990] and then ask if a bifurcated investigation invoking Garrity is really worth the chance of compromising the prosecution of the criminal case.

The US had old Ollie North dead cold in the Iran-Contra affair yet Congress felt fit to make him testify which they legally could do, just as the Sheriff could compel Pyle to give testimony in an internal.

The testimony or transcripts are discoverable plus to fire Pyle would require a Merit Hearing at which point they could become public.

Under North, the burden fell upon the prosecution to prove that none of the testimony was shared, learned or that the potential jury pool was not in any way contaminated. A very slippery slope. (Remember North prevailed)

There is a good deal of controversy about precisely what the limitations are on the use of the statement or the fruits of any Garrity statements.

There are volumes, but mostly rule in favor of the compelled employee, nota good omen for the local prosecution.

The federal court of appeals in the case involving the prosecution of Oliver North held that a prosecutor has an affirmative burden of proving that all testimony must be free of any taint from the immunized statement.

In the words of the court: “The District Court must hold a full hearing that will inquire into the content as well as the sources of the grand jury and trial witnesses’ testimony. That inquiry must proceed witness by witness, line by line and item by item. For each grand jury and trial witness, the [prosecution] must show by a preponderance of the evidence that no use whatsoever was made of any of the immunized testimony.” (Like I said, North prevailed)

The ISP is the lead agency on the criminal case, however if Pyle is ordered to answer at the Sheriff’s IA, he would simply refuse, and then the Sheriff would assert Garrity and compel a statement.

Either way he could be fired for disobeying a direct order or the appropriate violation of departmental conduct.

Sound easy BUT he now later returns alleging his constitutional rights of self incrimination was denied since he was under the duress of the criminal charges.

Okay so he is off the county payroll for the short term but wins a huge award from the county at minimum all back pay to the date of conviction.

His defense attorney will launch the appeal that the testimony was potentially shared with the ISP investigators or that his firing became prejudicial to the jury as a tacit indication of guilt.

Sometimes it is better making a short term payment rather than a huge payment later.

We all know the results of hasty terminations.

I do not have a dog in this fight; I just try to see logical outcomes without emotion.

That said. I think if he is convicted, Pyle should spend a LONG time in prison.

Regarding Merit Commission hearing, I am not too familiar with the workings of the local Merit Commission, but in most Municipal Employee suspensions, without pay is tantamount to firing.

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You can read the other eight comments here.