McHenry County Blog

If you are really, really interested in what happened in Judge Michael Caldwell’s courtroom on February 24, 2010, here’s where you can read the transcript that hasn’t already been posted on McHenry County Blog this week.

There were a couple of parts that jumped out at me.

• a somewhat irritated Judge Caldwell said, “Overruled. I know what it said. I wrote it,” in response to an objection raised by Township Trustees’ attorney Thomas DiCianni objected to the way Linda Moore attorney John Nelson characterized the Judge’s direction on how contracts were to be handled (about 30% into the transcript)
• “The problem is, is that the deal went down outside of the meeting. It went down outside of city hall or township hall. It went down when Mr. LaPorta cozied up with Mr. Brown and negotiated contract and presented a contract to the board as
  a fait accompli,” Judge Caldwell observed, continuing, “It is not the way public bodies do business — and you know that,” talking over DiCianni (about half way through)
• “Don’t hold you breath,” the Judge said when asked about IT Solutions, adding, “Not going to happen. Contracts negotiated by Pam Fender do not stand on solid ground in front of me, number one…”
• “We would ask for sanctions,” DiCianni asked in his concluding remarks.

The final part of Judge Michael Caldwell’s comments at the February 24, 2011, hearing had to do with contracts.  The judge is still disturbed at the Trustees “trying to marginalize” Supervisor Linda Moore.

He warns the Trustees (and maybe their attorney Thomas DiCianni),

“…I want to caution everybody in the courtroom who’s involved in this case: The orders of this court have the force of law and they are supposed to be observed.

“Now, I know people who think they are more clever than I am and they probably are, but what happens to cute and clever people from time to time is they get too cute and they get too clever and they may suddenly find themselves in direct violation of a court order.

“When that happens, my discretion is always exercised with a jail term. I have never fined anybody for direct criminal contempt.”

Here’s the concluding part of the transcript:

THE COURT: Now, I shouldn’t have to say this, and I guess the reason I’m sort of chagrined by this whole thing is when I said the trustees had the power to contract, what I meant was that the trustees have the power to make a motion to approve the entry into a contract; and then when I went on in my decision to talk about Linda Moore’s obligation to sign the contracts, it is also her right as the trustee — as the supervisor to sign those contracts which have been approved by the board. It is a ministerial function of the supervisor.

It is demeaning and insulting for the board to sit there, approve a contract for a vendor and then sign it and not give her a copy.

It is her right to sign it, not yours.

She is the chief executive officer of the city.

That’s what they do.

That’s what they’re supposed to do.

MR. DiCIANNI: What if she refuses to sign it which is what –

THE COURT: That’s not the issue.

MR. DiCIANNI: — was evidenced.

THE COURT: That’s not the issue here. The issue here wasn’t that she refused to sign it.

The issue here was that it was approved by the trustees, they all signed it, she asked for a copy and she wasn’t given it.

They do it and then run around somebody; and, again, this is another instance of the trustees going off and trying to marginalize or avoid the responsibility for the duties of the trustee.

It’s not punishable at this moment in time, but I want to caution everybody in the courtroom who’s involved in this case: The orders of this court have the force of law and they are supposed to be observed.

Now, I know people who think they are more clever than I am and they probably are, but what happens to cute and clever people from time to time is they get too cute and they get too clever and they may suddenly find themselves in direct violation of a court order.

When that happens, my discretion is always exercised with a jail term. I have never fined anybody for direct criminal contempt.

I have jailed people for direct criminal contempt.

Only twice in 13 years and I regretted the necessity to do both, but, folks, believe me, I’m not going to tolerate a lot of this nonsense in the future because I think that, by and large, there should be a way for this township to be governed in a much less contentious manner.

Do you want time to write this up?

MR. DiCIANNI: Yes.

THE COURT: Two weeks.

MR. DiCIANNI: Thank you.

THE COURT: Give me an order continuing it.

= = = = =

This is not the first time that Judge Caldwell has mentioned contempt in connection with the continuing Grafton Township dispute.  See also

• 5-18-10 Politicians Who Can’t Say, “No”… or “Yes”
• 3-30-10 Judge Puts Grafton Township Supervisor Linda Moore Back in Her Office, Threatens Trustees, Administration with Contempt

Continuing with Judge Michael Caldwell’s comments, today we look at three expenditures which the Township Trustees ordered and for which Supervisor Linda Moore was withholding payment when the judge ruled were legitimate.

They are

• payments for transcripts
• videoing of meetings and
• making copies for audience members

On a matter of continuing contention, however, Moore won.

Trustee Rob LaPorta has been insistent that he wants to be able to look at the township books in a “read-only” format over the internet.

Moore’s investigations of the accounting system being used, Quick Books, led her to conclude this was not possible, so she has made them available during office hours at the township office, access that made it difficult for LaPorta to avail himself of.

Here is the part of the judge’s concluding comments in the hearing two weeks ago:

THE COURT: Q & A Reporting. The trustees have a right to have a transcript of their proceedings if they wish. The Q & A Reporting bill should be paid.

Excellence in Copying. If you want to have additional matters from the agenda printed up to be available for the public for the use and inspection at the meeting, that certainly is a legitimate cost.

Point of Video, the same thing.

Now, on the access to the bills, the court’s going to find that the access to the bills — to the financial records as described by me today by Linda Moore in her testimony is adequate to comply with the court’s order.

She has stated that the records are available during normal business hours, Monday through Friday. They are available at other times by appointment.

I don’t find that to be unreasonable on its face.

I am accepting Ms. Moore’s description of what she has made available on the laptop computer because, quite frankly, she is the only one that I know of who has actually seen it or used it or set it up.

The motion here is brought upon basically suspicion, innuendo, supposition and conjecture; that, because the trustees don’t like it. They want remote access, remote access isn’t necessary.

The problem I have with the Internet is that once you get on the Internet there are all sorts of opportunities for mischief, that quite frankly, in this township we don’t need.

I don’t need it and you don’t need it.

McHenry County Blog has been posting conclusions of Judge Michael Caldwell concerning whether and from where Grafton Township bills should be paid. We have looked at bills relating to the construction of a new township hall, the forensic examination of computer memory, installing a new lock on Township Supervisor Linda Moore’s office after she was kicked out by the Township Trustees.

Today we look at a mailing that the Township Trustees put out prior to the Annual Town Meeting at Huntley High School.

Here’s the interchange between Ancel Glink attorney Thomas DiCianni and Judge Caldwell about the mailing:

THE COURT: I will not approve — how did this mailing start, the mailing to Del Webb and why does Del Webb get mailings and the rest of the township doesn’t?

This mailing only went to Sun City residents.

MR. DiCIANNI: Because they weren’t coming to the meetings and didn’t know about it.

THE COURT: They can do it like anybody else does, read it in the newspaper. That’s where it is. It’s in the Herald.

MR. DiCIANNI: Well, it doesn’t make it an illegal expenditure, your Honor, it’s a –

This side invites people to the Annual Town Meeting.

THE COURT: I think it’s purely political.

MR. DiCIANNI: So I –

THE COURT: I think it is political because it appeals to a voting block.

MR. DiCIANNI: There has been no evidence that that voting block has any particular predilection politically either way.

 

Bill from MLSMaing for the postcard to Sun City which Judge Michael Caldwell says was "political" and Township Supervisor Linda Moore "was justified in not paying it."

THE COURT: You target a mailing to a seniors’ community and you want me to believe that it’s not political?

The mailhouse paid $1,500.72 in postage for the postcard to Sun City residents.

MR. DiCIANNI: They would be the last ones to –

THE COURT: It would be hard to –

MR. DiCIANNI: They would be the last ones who would want to approve the building, if that’s what the insinuation is from the point –

THE COURT: I can’t say that.

MR. DiCIANNI: Well, there are suppositions there, your Honor, that I think are not part of the evidence.

THE COURT: She was justified in not paying it.

In the latest hearing on the continuing Grafton Township separation of powers case, Judge Michael Caldwell continues to tell the township what bills should be paid and which should not.

 

Township Supervisor Linda Moore has been withholding bills she thought should not be paid.

Yesterday, he decided that bills incurred before his decision about the legitimacy of the new township hall favored so strongly by the township trustees should be paid.

Supervisor Linda Moore had been withholding payment pending such a court decision.

Judge Caldwell now turns to the bill from Forensicon, with whom Trustees Betty Zirk and Robert LaPorta signed a contract:

THE COURT: To this day I have a serious question on the legitimacy of the Forensicon bill which only grows every time it’s presented in front of me.

It’s approved for $10,000, now it’s 19. I don’t know why.

I don’t even know how Forensicon was hired.

I don’t see — I have never seen in any of the things that have been presented to me any itemization, any proof, any verification as to how this contract was entered into, who did it, when it happened and how it happened.

Grafton Township Trustees Betty Zirk and Rob LaPorta.

My suspicion is, and this is very dangerous to the people who may have done it, is that a couple of trustees went off on their own and hired somebody else and then brought it into the board as a fait accompli and said, “Here’s our computer expert, pay it.”

If that’s what happened, this may not be a legitimate bill of Grafton Township, somebody may have contracted to pay for this out of their own pocket.

Elgin Key & Lock is not payable from township funds.

That was number one.

It was a bill that was incurred by a trustee on their own to do something which was plainly illegal and which I found to be illegal.

Forensicon is not approved for payment and it’s open to — if you want it paid, pay it out of township money, you’re going to have to prove it.

You’re going to have to bring me a special proceeding on that because I will not approve it.

The Elgin Lock & Key bill was $381.

More tomorrow.

= = = = =

Link to the final Forensicon contract with Grafton township.

I wrote a piece on what I heard sitting in the courtroom while the elected Grafton Township combatants’ attorneys tilted in the first post-decision hearing.

Out in the hall, Supervisor Linda Moore’s attorney John Nelson outlined what had been decided.

The first question concerned that part of the ruling dismissing Ancel Glink as Township Attorney and Keri-Lyn Krafthefer, a party to the suit, specifically.

Ancel Glink litigator Thomas DiCianni told the judge that his firm would not serve as Township Attorney, but asked that his firm’s prohibition of service as Township Attorney be limited to Moore’s term in office.

“The judge thought that was fair,” Nelson said.

A time line will be developed for Moore to fulfill her part of the judge’s order. That will be reviewed at the next hearing, which is on January 21st.

There was discussion of the payment of bills. Moore has been order to promptly present bills, which the Board can decided to pay or not to pay.

Nelson brought up the concept of checks and balances, pointing out that the Supervisor does not have to pay the bills if there is legitimate reason they should not be paid.

Asked what that meant, Nelson replied, “If improperly incurred.”

The bills for Forensicon and Elgin Key and Lock were discussed.

Judge Michael Caldwell told the lawyers there wasn’t sufficient evidence presented to see how these bills were incurred. Because of that he wasn’t ready to make a decision.

Nelson asked about the process of appointing a township attorney. The judge is reported to have indicated that the board’s advice and consent could not be unreasonably withheld.

“Let’s say Linda submits six lawyers and the board rejects them all,” Nelson suggested.

That might be considered unreasonable, I gathered.

“In my opinion, the township needs a lawyer,” Nelson said. He suggested such an attorney would have to “be firm with all parties.”

The final item discussed was the possibility of mediation.

Judge Caldwell brought up that topic.

In addition, the judge “gave indication to both parties to pay attention to his entire opinion,” Nelson said.

My notes also have, “Entire body of the opinion should be seriously considered.”

“I took him seriously,” Nelson concluded.

By the time I got finished talking to Nelson and Moore, DiCianni was out of sight.  I am sure that the First Electric Newspaper will have quotes form him.

The on-again, off-again Friday hearing for the Grafton Township separation of powers case ended up being held in Judge Michael Caldwell’s courtroom.

It was one of the most unsatisfying hearings I have ever attended because it was impossible to hear what was being said.

Attorneys not at the bench were conversing, as were some audience members.

I got some snippets as Ancel Glink’s Thomas DiCianni started the proceedings.

“We’ve read your opinion. (It was very) thorough, but (there are) a few questions.

Then the volume was so low that virtually nothing could not be heard.

First he mentioned a topic which he said, (we?) “don’t know if we took that possibility…”

Your guess as to what he said sitting in front of your computer is as good as mine sitting in the courtroom.

All of his second point I heard was, “ordered Supervisor…Did not enter.”

John Nelson, Linda Moore’s attorney said the word “every” and some others that were inaudible.

DiCianni: “I think the statute uses ‘audit.’”

And, “What could be the purpose?”

Judge Caldwell, facing the audience could be heard to say, “Pay the bills if there is money available.”

Nelson mentioned something with the phrase, “some of these bills,” in it.

Caldwell alluded to the state’s financial situation. I heard, “What part the state in the financial situation it is in.” There was no way to figure out the context. Township government isn’t subsidized by state government, except for its share of Motor Fuel Taxes.

Nelson mentioned “checks and balances.”

Then, “…can’t have the board pay bills without the Supervisor bringing it to (them).”

“We will have to re-visit it, the three of us,” reached my ears from Judge Caldwell.

The Trustees’ attorney then asked for a “time line for plaintiff’s actions,” referring, it seems to Moore’s bringing records back to the township office and providing read only access to township financial records.

“You order some relief that’s not contained in the order section,” DiCianni pointed out. “It has to do with the records.”

Another hearing was sought in mid-January to which the Judge agreed.

“The Board has the power to advise and consent. That approval should not be…” Caldwell said, but I could not catch the rest. “Advice and consent” was mentioned in the court decision concerning selection of a township attorney, which, after the decision’s dismissal of Ancel Glink, is not in place.

More fragments from the Judge:

“The reality is…”

“Have the parties…”

At this point Trustee Gerry McMahon walked in the courtroom to join Trustees Barbara Murphy and Betty Zirk, who were present from the beginning.

Supervisor Linda Moore was present from the beginning. Her husband David came in while I was taking notes.

The altercation outside the township meeting between McMahon and David Moore was being considered in another courtroom. I learned later that that trial date will be April 4th.

Yesterday, McHenry County Blog summarized Judge Michael Caldwell’s conclusions in the lawsuit filed by Grafton Township Supervisor Linda Moore against her fellow Grafton Township Board members, Trustees Gerry McMahon, Rob LaPorta, Barbara Murphy and Betty Zirk.

Today, we’ll look at his logic.

After summarizing the testimony, Judge Caldwell wrote:

“There was voluminous evidence of

• canceled gasoline credit cards belonging to a department of the township,
• the failure to halt direct deposit of employees’ paychecks,
• Moore’s attempts to put the meetings of the township board on the the internet via the assessor’s website and the Illinois Township Officials Association,
• misdirected mail,
• the changes in the bus schedule (labeled as a “…complete failure…” by a single resident),
• the complete history of the Grafton Township Food Pantry,
• the history of the terms of Supervisors [Mildred] Ruth and [John] Rossi and
• an evidentiary comparison of the workings of Nunda Township with Grafton Township.

“None of this has any relevance to these proceedings”

“It may be interesting, even entertaining for some, but on the whole it is immaterial and irrelevant….It is nothing more than evidence of

• simple mistakes,
• poor judgment and
• a past that is over and not about to return any time soon.

“As such, none of this has any relevance to nor does it contribute to any decision that I must make regarding the state of affairs in Grafton Township.”

In his analysis section, the Judge pointed concluded,

“That there is an all-out, political and personal war between the Township Supervisor and the Board of Trustees of Grafton Township is readily apparent from the evidence.

“Not only do these parties intensely dislike one another, but both sides of this controversy seem dedicated to all out conflict, all of the time, regardless of its effect on township government or its programs.

“At the heart of these proceedings is the toxic relationship between the township board and the supervisor….

“Any ruling I make can affect some aspects of the relationship but not all of them.

“I cannot judicially regulate impolite, abusive, or course discourse between parties. It may be rude and hurtful, but the harm is not irrevocable and no one has the ‘right’ to compel others to be polite.

“Someone far wiser than I once said, when commenting on the First Amendment,

‘It takes a thick skin to be an American citizen.’

“Additionally, politics has always been a rough and tumble pursuit. Apparently in Grafton Township, it has been elevated to the level of a blood sport.

“That being said, there is nothing this court can do to compel these parties to be “…nice…” to one another, as was requested in one of the prayers of relief.

“The only think I can offer is the advice of the late President Harry Truman who said,

‘If you can’t stand the heat, get out of the kitchen.’”

Ancel Glink partner Keri-Lyn Krafthefer looks up a point of township law after she had been dismissed by Supervisor Linda Moore.

Judge Caldwell then indicated he would rule on the “supervisor/ board relationship.”

In other words, on the separation of powers.

And, how those powers were balanced was reported in yesterday’s article.

The Judge confirmed Supervisor Moore’s authority to fire Township Administrator Pam Fender and Township Attorney Ancel Glink, usually represented by Keri-Lyn Krafthefer at township meetings.

Judge Caldwell’s reversal of the political strategy presumably concocted by Krafthefer to allow the Township Trustees to take control of what they could not win at the ballot box is nothing short of stunning.

He confirmed Moore’s authority to run the day-to-day business of the township the same way that a strong mayor or a village president does.

Caldwell did say the Township Trustees could set the agenda at the beginning of every meeting, had approval authority over large contracts and should have the ability to access township financial records.

Among unanswered questions are the following:

• whether forensic computer firm Forensicon’s bill would have to be paid with taxpayer dollars or by the two trustees–Betty Zirk and Rob LaPorta–who signed the contract
• whether taxpayers have any call on the money that was paid to Township Administrator Pam Fender and Ancel Glink after Moore dismissed them from township service
• whether paying off the Town Hall loan to the Township
  Road District mandated at the Annual Meeting requires Board approval
• whether the severance clause in the contract approved by the Trustees for Pam Fender is enforceable
• whether the Supervisor can select the outside auditor (since advice and consent is required for the attorney’s selection

Judge Caldwell did rule that both Moore attorney John Nelson and the Trustees’ Ancel Glink litigator Thoma DiCianni and others in his firm would be paid by the taxpayers for services rendered in this lawsuit.

When I last looked at the bills, the Trustees were outspending the Supervisor 4 to 1.

Part 1 is here.

This 37 image post is for hard-core Grafton Township folks. It comprises Judge Michael Caldwell’s entire decision in Township Supervisor Linda Moore’s suit against her Township Trustees and Township Attorney Keri-Lyn Krafthefer of Ancel Glink, the Township Attorney that she dismissed months ago. Click to enlarge any image.

Introduction – page 1 and 2.

Linda Moore – page 2 and 3.

Township Administrator’s Job Description – pages 3-7.

Linda Moore relationship with Pam Fender – pages 7-8.

Moore and township attorneys – 7 and 8.

Moore continues through page 10.

John Rossi – pages 11 and 12.

Bill Ottley – pages 12 and 13.

Chad Smith – page 13.

Mark Peloquin – pages 13 and 14.

Mary Lou Hardy – page 14.

Donald Kruto – page 14.

Pamela Fender – pages 14-16.

Rob LaPorta – pages 17 and 18.

Yanif Schiff – pages 18 and 19.

Dina Frigo – pages 19 and 20.

Mary Ford – page 20.

Betty Zirk – pages 20-21.

Keri Krafthefer – page 21.

John Heisler – page 21 and 22.

Issues start on pages 22-24.

Law – pages 24-28.

Analysis – pages 28-29.

Township Supervisor – pages 29-32.

Township Administrator – page 32.

Township Records – page 32-33.

Attorneys Fees – page 34.

Findings – pages 34 and 35.

Orders – page 35 and 36.

Distribution – last page.

In the Grafton Township separation of powers case filed by Township Supervisor Linda Moore against her Township Trustees, Moore largely won.

Judge Caldwell wrote,

“What was done here by this board to the supervisor was not a policy but rather a deliberate usurpation of the supervisor’s authority and a clear case of unnecessary meddling and illegal micromanaging.”

On the other hand, the power of the Township Trustees to set the agenda, meeting times and places, plus award contracts and set employee salaries was affirmed.

Labeling the relationships “dysfunctional,” Judge Michael Caldwell ordered Trustees Betty Zirk, Gerald McMahon, Rob LaPorta and Barbara Murphy not to

• implement or attempt to implement the position of Township Administrator
• employ or attempt to employ Pamela Fender in the position of Township Administrator or in any other capacity
• 

  Ancel Glink partner Keri-Lyn Krafthefer is out of her job as Grafton Township Attorney.

  employ or attempt to employ Ancel, Glink, Diamond, Bush Dicianni & Krafthefer as township attorneys

• require that the Township Supervisor secure the advice and consent or approval of the township board before hiring any employee
• require that the Township Supervisor secure the advice and consent or approval of the township board [before] the firing or discharge of any employee
• require that the Township Supervisor secure the advice and consent or approval of the township board [before] the firing or discharge of the township attorney
• interfere, hinder, obstruct “Moore in the exercise of her duties as Township Supervisor and Chief Executive Officer including, but not limited to, the day-to-day organization and operation of the township offices, access to township business records, data and information of any kind and the computers used for the storage and creation of same, the preparation of agendas for township board meetings, the calling of special meetings and the posting of notices therefore”

Moore was forbidden from

• “removing, taking or transporting, secreting or concealing any township financial records, computer disc drives or computer-stored information by any means from the township offices
• “hindering, obstructing or preventing or attempting to hinder, obstruct or prevent access” of the Township Trustees to “official records…including but not limited to, all financial information regarding the business and operations of the township
• “failing to promptly present for consideration by the board of trustees”…”all bills, statement and invoices for goods and services rendered to the township.”

The Judge devotes most of his opinion to a summary of the facts and testimony, including the entire job description of Township Administrator Pam Fender, and relevant portions of the Township Code.

He points out that Moore “began her assault on the status quo in Grafton Township with a legal challenge to the township’s announced plans to issue bonds for the construction of at $3,00,000 town hall.’”

Caldwell notes Moore participation in the lawsuit to stop construction and her filing for office against incumbent Republican Supervisor John Rossi and her victory in both efforts. He notes that the Trustees spent $88,000 on attorney’s fees defending the new town hall. Half was spent in the case in which Judge Caldwell sided with Moore and her fellow plaintiffs and the other half was spent in the Trustees unsuccessful appeal.

“That is when the genesis of this lawsuit began,” he writes.

“Judging from the testimony elicited at the hearings before me, Moore’s term was marked by

• controversy,
• bitterness,
• conflict and
• outright hostility

from the very outset. She and the trustees battled over meeting notices, agendas, audits, access to public records and just about every facet of township government imaginable.”

He notes using Latin words I don’t understand even after two years of that language (sui generis rules) that the board stopped using Robert’s Rules of Order.

He points to the hiring of Pam Fender to be Township Administrator and installing her in Moore’s office.

Then, Moore filed her lawsuit and the trustees filed a counterclaim.

Reached for comment, Moore said,

“Until I hear from my attorney, it appears this ruling will enable me to do the job of Supervisor which is what the electors put me in office to do.”

Moore’s attorney is John Nelson.  Thomas DiCianni represented the Township Trustees.

More tomorrow. (See Part 2 here.  Read Judge Caldwell’s decision here.)