McHenry County Blog

Today, we move to the fourth installment on the motion filed by former Deputy Sheriff Zane Seipler’s lawyer Blake Horwitz requesting sanctions against McHenry County Sheriff Keith Nygren for releasing confidential information.

This is occurring in Seipler’s Federal wrongful termination suit being heard in Rockford.

Paragraphing and formatting has been added in the text to make the text easier to read on a computer screen.

A second alleged violation of the Court’s Protective Order is described next.

“Second Violation of Court Order

“On April 9, 2007, a police report was filed by Rosalinda Saucedo-Seipler with the Woodstock Police Department, Woodstock Police Report #07-4183. The report contains very personal information regarding a domestic incident between Plaintiff Zane Seipler and his wife, Rosalinda Saucedo-Seipler (Exhibit E).

“On or around January 22, 2010, the Woodstock Police report #07-4183 was widely disseminated to the deputy officers at the McHenry County Police Department [Foot Note 2].

= = = = =
Foot Note 2.  “Deputy Tim Matteson, a deputy of the McHenry County Sheriff’s Department personally observed a copy of the report in his mailbox and saw several reports placed in the mailboxes of various deputies and on a table in the Patrol Roll Call room in the McHenry County Sheriff’s made available in roll call two weeks prior to the primary.= = = = =

= = = = =

“The report was unlawfully placed in the mailboxes of several Deputy Officers and put on tables in the Patrol Roll Call room in McHenry County Sheriff’s Department without the permission or knowledge of Rosalinda Saucedo-Seipler or Zane Seipler.

“Mr. Seipler was a Republican candidate for Sheriff. The Woodstock police report was placed in the boxes and
made available in roll call two weeks prior to the primary.”

“Department (Exhibit F). Deputy Matteson spoke to Deputy Milliman regarding the report, who stated that he saw several copies of the report in various areas of the Squad room in the McHenry County Sheriff’s Department.

“At the time, Zane Seipler was running for the position of Sheriff of McHenry County and the illegal distribution of the report negatively influenced his political campaign.

“Newspaper reporters, Chuck Keashan of the Daily Herald and Jillian Duchowski of Northwest Herald, contacted Zane Seipler to inquire about this personal matter.

“Finally, Seipler’s domestic incident was discussed on online blogs (e.g. http://antiwoodstockadvocate.blogspot.com) and in the comment sections of numerous Northwest Herald articles.

“The release of this report affected both Zane Seipler’s career and reputation in McHenry County.

“On February 23, 2010, Robert W. Lowen, the Chief of Police of the Woodstock Police Department wrote a letter to Rosalinda Saucedo-Seipler regarding the results of the investigation (Exhibit G).

“Chief Lowen wrote that there were two different requests to access the report through the City of Woodstock Freedom of Information Act. Chief Lowen and Officer Cindy Smiley recommended denial of these requests and stated that the report was not disseminated to the two entities that requested the report via FOIA.

James Sotos

“Chief Lowen also stated in this letter that the report was released by subpoena.

“The only firm that subpoenaed the materials was James G. Sotos and Associates. This firm admits having secured the documents via subpoena.

“As illustrated above, the law firm of James G. Sotos and Associates and the Defendant Officers were the only entities who were given access to the report through the use of a subpoena. As a result, they were the only persons who could have unlawfully distributed the report to the McHenry County Sheriff’s Department.”

Addition detail is included, then…

“Defendant’s distribution of the report was in direct violation of the Confidentiality Order entered by both parties: ‘The Parties will not use or disclose the PHI and/or Confidential Matter released in this proceeding for any other purpose or any other proceeding.’

“The dissemination of the report is a clear violation of Illinois law. 20 ILCS 2630/7 Sec. 7.

“No file or record of the Department hereby created shall be made public, except as provided in the ‘Illinois Uniform Conviction Information Act’ or other Illinois law or as may be necessary in the identification of persons suspected or accused of crime and in their trial for offenses committed after having been imprisoned for a prior offense …Violation of this Section shall constitute a Class A misdemeanor.

“In this instance, the distribution of the report by Defendants is a clear abuse of their official position.

“By releasing private information with regards to a candidate and citizen who was running for political office, the public good was harmed and the law was violated.”

= = = = =

More tomorrow.

Zane Seipler

Keith Nygren

As most McHenry County Blog readers know, former and future (my prediction) McHenry County Deputy Sheriff Zane Seipler is seeking appointment of a Special Prosecutor from Judge Thomas Meyer to probe whether Sheriff Keith Nygren used county taxes to further his campaign.

Judge Meyer seemed uninterested in the big exhibit of supposed wrongdoing which Seipler attorney Blake Horwitz brought to court.

Meyer mentioned that he was aware of what the Sheriff and McHenry County Board Chairman Ken Koehler had told the Northwest Herald.

Click to enlarge.

When one of the attorneys brought up subpoenas which Seipler attorney Horwitz had served on the Sheriff’s Department, Judge Meyer quashed them.

As he ruled that the subpoenas could not be enforced, Judge Meyer said that it was not the responsibility of Siepler’s attorney to make the criminal case against Nygren, that that would be the task of the Special Prosecutor, if one were named.

Judge Meyer said his decision about naming a Special Prosecutor would be made based solely upon whether McHenry County State’s Attorney Lou Bianchi was unavailable or had a conflict of interest, two conditions containing in the statute which states when a Special Prosecutor can be named.

Nevertheless, I was curious as to what information the subpoenas requested that the Judge apparently had no interest in reviewing. So I filed a Freedom of Information request.

The subpoenas are dated September 19, 2011, with a return date of October 6th.

The first is for Undersheriff Andy Zinke.  It asks for “Any and all documents in your possession or control which contain a seven pointed star as an emblem and/or symbol of the McHenry County Sheriff’s Department within the document.   Petitioner is not requesting documents which are the subject matter of law enforcement privilege.”

The second, dated September 19th, is to John Trotter.

It requests, “Any and all documents in your possession or control which concern the placement of a seven pointed star on any wall(s) within the Sheriff’s Department and onto any any official vehicles, motorcycles, trailers, snowmobiles, golf carts of the department (see rider).”

The rider explains that financial records are being sought, including “receipts, financial transactions, payment to a contractor, subcontractor for work performed concerning the placement of the seven pointed star.”

= = = = =
A couple of thoughts occurred while writing this piece.

I have watched Judge Meyer for many hours, starting with the Northwest Herald’s case against me.

Many times while waiting for that case and two cases involving Zane Seipler (the FOP arbitration administrative review case and the Special Prosecutor case), I have arrived early and seen his deliberate style and well-reasoned judgements.

I can’t believe he would be influenced by misleading information in a newspaper indicating that the price of a Special Prosecutor would have to be as egregious as the amount billed by Tonigan and McQueen.

Indeed, McHenry County already has a $30,000 per year arrangement with the Illinois State’s Attorneys Appellate Prosecutor, which has gone unmentioned in the Northwest Herald, to the best of my knowledge, but about which I reported in August.  County Board Chairman Ken Koehler signs the resolution each year.  The contract includes trial assistance, such as, acting as a Special Prosecutor for no extra cost, except for incidentals like copying and other miscellaneous costs.

Nor do I believe Judge Meyer could be influenced by the Northwest Herald’s editorial urging him to drop the request for a Special Prosecutor based on the fiasco that resulted from Tonigan’s failed efforts any more than he considered the influence of the county’s dominant newspaper in its case against me.

What I don’t understand is the Judge’s apparent lack of interest in evidence of the Sheriff’s alleged use of his office for political purposes.  Does he believe the allegations and exhibites themselves are serious enough to consider appointing a Special Prosecutors?

We’ll probably never know.  As my son tells me when I try to understand his thought processes:

“It’s my mind.”

Elizabeth Barton after the Rockford Court hearing on Gus Philpott's successful motion to suppress the subpoena for personal and Woodstock Advocate demails.

When Woodstock Advocate blogger Gus Philpott went to Rockford Federal Court to object to Sheriff Keith Nygren’s attempt to get all of his emails to and from any number of people, Philpott challenged the decision and won his motion to prevent enforcement of the subpoena.

And he won.  See

“Philpott Beats Nygren“

Contained within the hearing transcript (which you can find in full here) of Zane Seipter’s case against the McHenry County Sheriff’s Department is the following stunning admission by Sheriff Nygren attorney Elizabeth Barton:

“…Mr. Seipler was terminated for complaining about racial profiling.”

The case Seipler brought against the Sheriff’s Department charges wrongful termination.

The following part of the transcript puts that statement into context:

THE COURT: No. The information would have to be pertinent to this lawsuit, not just the internal investigation to get to it.
MS. BARTON: Okay. There’s also information about the deputies at roll call who said on his blog or –

Zane Seipler

THE COURT: What date are we talking about? When Mr. Seipler was still there or not?
MS. BARTON: When Mr. Seipler was still there.
THE COURT: And what did the deputy say, according to the blog?
MS. BARTON: That Mr. Seipler was either making allegations against certain deputies for racial profiling or that he or she overheard other deputies telling the people in the roll call room –
THE COURT: Why do you want to know about that?
MS. BARTON: Because Mr. Seipler was terminated for complaining about racial profiling. So, it’s important to know who he complained to and who was aware of the allegations at the time.
THE COURT: But you could ask Mr. Seipler that and have at his deposition, haven’t you?
MS. BARTON: We have.
THE COURT: So, why does this person here have more information than Mr. Seipler’s given you?
MS. BARTON: Well, we’re looking for the identity of the deputies that were making those statements in the roll call room or anywhere else in the sheriff’s department, and so far we haven’t been able to determine who those deputies are.

The motion by Gus Philpott that led to the quashing of Keith Nygren attorney's subpoena. Click to enlarge.

Acting as his own attorney, Woodstock Advocate blogger Gus Philpott prevailed Wednesday in Magistrate P. Michael Mahoney against McHenry County Sheriff Keith Nygren lawyer.

James Sotos, Nygren’s attorney in former Deputy Sheriff Zane Seipler’s wrongful termination suit, sent his associate Elizabeth Barton to try to get the judge to enforce a February 24th subpoena seeking emails over a 27-month period to and from present and former Sheriff’s Department employees, among other, Zane Seipler, yours truly, etc.  The time period pretty much covered the entire sheriff’s campaign.

Philpott, who did not received the subpoena until three days before it was due argued in a motion filed March 9th that

• the three day period was inadequate,
• he was not a party to the case,
• what was requested was irrelevant to the case

Judge Mahoney immediately asked the contents of the subpoena.

Gus Philpott leaves the Federal Courthouse in Rockford free from a subpoenas asking for emails relating to the Sheriff's deputies, preset and past, Zane Seipler, Cal Skinner, etc.

It became clear quite quickly that Nygren’s defenders were seeking the names of deputies who may have provided information to Philpott which the Sheriff would rather have been kept secret, information that Sotos associate Elizabeth Barton said was “confidential to the Sheriff’s Department.”

How would the information be used, Magistrate Mahoney wanted to know.

“During depositions” was all I got down before Mahoney asked, “To impeach witnesses. I’m not quite sure (I understand).

James Sotos Associate Elizabeth Barton leaves the Federal Courthouse.

“You understand that he’s not a party?” he continued before asking about the 27-month period.

Barton said they were looking for “anything relevant to the (case) about what certain deputies may have said during roll call.”

Addressing Philpott, the judge said,
“If you had done a blog and you had put in the blog, ‘I know who robed a bank,’ obviously they could (subpoena that information)?”

After making that point, Mahoney said, “This seems to me awfully broad. You’re going to have to get more surgical in this. What do you want and why you’re after it.”

So, the Motion to Quash was granted because the scope of the information (emails) sought was overbroad– covering a 27-month period and thereby unduly burdensome on a non-party to the case.

“I’ll give you one more try. If you found information that was relevant…has to be relevant to this law suit.”

At this stage, Philpott started writing down what Barton said.

According to him, Barton said, “(Seipler) was terminated for complaining about racial profiling.”

If that’s what she said, it seems to me that’s what Seipler’s wrongful termination case is all about.

“But couldn’t you ask Mr. Seipler?” Mahoney asked.

“We’re looking for the identification of the deputies (who made the information public and so far we haven’t found them),” Barton replied.

Philpott was given an opportunity to talk at this point.

As soon as he mentioned that the subpoena was overly broad, the judge said, “I’ve got that.”

Philpott continued that “certain screen names are unfamiliar to me” (some commenters emails had been requested) and complained about the volume of emails over the 27-month period.

He didn’t get to say much before Mahoney ruled,
“I’m going to quash this subpoena and give you a second chance.”

He warned that it had to be “reasonable.” He also commented on the burden that it wold place on “a third party.”

Both the Cook County State’s Attorney and the United States Attorney have taken an interest in the overpayment of former Metra Executive Director Phil Pagano.

First to serve a subpoena was the State’s Attorney. You see it below (click to enlarge):

Requested were personnel records back to January 1, 2000. Interestingly, the documents says,

“Your (sic) are not to disclose the existence of this request.”

Phil Pagano

Since I got the May 5th record through the Freedom of Information Act, I guess it trumps the instruction on the subpoena.

The U.S. Attorney’s subpoena was dated May 20th.

It asks for “all computers, cellular telephones and/or handheld communications devices and any related computer media that Metra issued to Phil Pagano during his tenure at Metra,” plus his personnel file in a separate subpoena.