On February 16th into the McHenry County Circuit Clerk’s Office came another filing from Algonquin Township Road Commissioner Andrew Gasser’s attorneys Robert Hanlon of Woodstock and Michael E. Avakian of Washington, D.C.

The titles seem to be just getting longer.

CROSS/COUNTER-PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO MOTION TO DISMISS AMENDED COUNTERCLAIM

The brief asserts that Local 150’s December 22nd motion to dismiss “the amended counterclaim is without merit.

“… there are no grounds for dismissal under either 735 ILCS 5/2–615 or 5/2-619,” is in the first paragraph, which might mean something to the attorneys reading this, but goes way over my head.

Part of the argument follows:

“A court should not dismiss a complaint under section 2-615 unless it clearly appears that no set of facts can be proved that would entitle the plaintiff to recovery.”

Here’s the argument:

Algonquin’s Amended Counterclaim seeks to redress an egregious abuse of power. Until May 2017, three consecutive generations of the Miller family controlled the Algonquin Township Highway Commissioner’s office for decades.

When Robert Miller was voted out of office last year, he made a secret deal with Local 150 without the knowledge or approval of the Township Board or even notice to the public and then affirmatively concealed its existence.

The deal was for no public purpose, but was a continuation of the abuse of his office and part of a larger scheme to interfere with his successor’s performance of duties and to perpetuate the influence of Miller’s family and its affiliates, and strip the power of the people from ending the nepotism central to the campaign.

The deal – the purported collective bargaining agreement (“CBA”) – is illegal and a sham which undermines public integrity.

These facts and the other allegations of the Amended Counterclaim are deemed true at this stage of the proceedings. Local 150’s motion to dismiss mischaracterizes the facts alleged and the law. [FN1

]

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FN1 On January 17, 2018, the ILRB reversed its ALJ’s finding of an unfair labor practice, that the Algonquin Township Road District unlawfully repudiated the purported CBA with Local 150, Case No. S-CA-17-137. The finding was referred to by Local 150 on page 3 of its Motion. The matter remains pending.
= = = = =
Hanlon argues that state law does not allow townships to enter into labor agreements under the section that talks about the purchase of township services.

The purported CBA [collective bargaining agreement] is a purchase of “services” as Count I ¶42 refers to 60 ILCS 1/85-30 (limiting township contracts for “services, materials,” etc. to $20,000). Local 150’s Motion p.9 effectively admits this by stating “the exclusive authority to set terms and conditions of employment… equates to express authority to enter into CBAs” (emphasis added), contradicting its argumentthe purported CBA is not a “contract” that obtains or purchases the services of workers…

The court may also not grant Local 150’s motion to dismiss because the purported CBA is not a purchase of services, because the Amended Counterclaim specifically alleges the true purpose f the purported CBA was to procure long-term benefits for the Miller family…

Part of state township law gives officials the power to enter into contracts for professional services. The brief says the following:

But the hiring of highway workers, laborers, foremen and mechanics as in the purported CBA is clearly subject to 60 ILCS 1/85-30, for these occupations, while worthy, are uniformly not considered “professional.”…

605 ILCS 5/6-201.7 requires the Board’s approval for all contracts exceeding $20,000 even during emergencies, except professional services. As discussed in §I(C), infra, 605 ILCS 5/6-201.7’s first paragraph already conditions the Highway Commissioner’s authority on the Board’s approval to employ labor services over $20,000. 605 ILCS 5/6-201.7’s second paragraph therefore need not expressly repeat this requirement.

However, whether 605 ILCS 5/6-201.7 requires the Board’s approval during emergencies is irrelevant because there has been no emergency – other than Mr. Miller’s political defeat and his efforts to undermine the public.

Neither the Illinois Public Relations Act nor any other law required or authorized the CBA that includes wages, raises and other benefits for incumbent employees exceeding $20,000 to occur in derogation of the Highway Code.

The IPRA enacted in 1984 did not change these limitations on the highway commissioner’s authorities. The mischaracterization on Local 150’s p.6 – whether the employees’ jobs could be contracted out “after the bargaining unit was certified” – is irrelevant; if such a contract exceeds $20,000, the Board must approve it.

One of Local 150’s arguments in its filings is that the Road District is separate from the Township.

Hanlon offers rebuttals that lead him to conclude, “…the very existence of a road district
is at the pleasure of the township.”

The question of whether a township board of trustees has power over road district purchases is dicussed with Gasser’s attorney arguing that it does.

This appears in that section:

Even Local 150 requested the Algonquin Township Board not allow the employment of Road District counsel, thus, recognizing the power of the Board over Road District services

As does this:

…not even one of the 157 sections [of 605 ILCS 5/6]in that article states a commissioner’s powers and duties are not subject to the Board’s approval.

Continuing,

No sections even remotely authorize or obligate a highway commissioner to negotiate or execute a collective bargaining agreement without the Board’s approval.

A unilateral contract by a highway commissioner for roads and bridges within a township is ultra vires, and the township not liable, where the Board had not authorized it, see Michael v. Jordan, 6 N.E.2d 213, 214 (3d Dist. 1937).

Mr. Miller lacked authority to sign the purported CBA…

The burden rests upon the person seeking to enforce a contract to show it is within the statutory authority of the public signor. Dement v. Rokker, 126 Ill. 174, 19 N.E. 33 (Ill. 1888). Local 150 failed to do so…

That all road district money is exclusively controlled by the township Board is no ministerial happenstance, for the Board ultimately controls the terms of all personnel employed within the Township.

Still attacking the ability of a road commissioner to sign a labor contract, the brief says,

Local 150 cites no authority the Highway Commissioner has exclusive and unchecked
authority to unilaterally enter into collective bargaining agreements “for Road District employees.”

The Highway Commissioner is an officer of the Township and paid only by it.

Notably, Local 150 claims the highway commissioner has “express statutory authority…to negotiate terms and conditions of employment,” but nowhere does it submit any statute provides final authority to enter into or sign employment contracts. ..

Local 150’s citations to Amended Counterclaim ¶¶29, 51-52 for claimed authority to do so are utter misstatements…

The purported CBA, if valid, follows any authority of the Road District to bargain under 5 ILCS 315. It must be subject to the approval of the Board and this path is not altered by Dillon’s Rule, which restricts government power and cannot be used to “fill[] this gap” as Local 150’s p.8 proposes.

Local 150 admits no statute provides highway commissioners “exclusive authority to set terms and conditions of employment” by contract, p.9.

Failing to distinguish the authority to hire and fire at will is fatal to Local 150’s argument.

Conclusory arguments that authority to sign CBAs is “incident to or indispensible” to the highway commissioner’s “statutory duties” is not explained or developed.

Its inference of facts and law do not defeat Algonquin’s Counter-Claims.

Another section attacks the Local 150 argument that the road commissioner decision to sign a collective
bargaining agreement is not subject to township board approval:

Local 150 argues at great length that highway commissioners may enter into collective
bargaining agreements. Motion 6-9.

Its argument is irrelevant to the 60 ILCS 1/85-30 violation.

Since a highway commissioner’s powers are vested in and exercised by a township this would not change the fact that the purported CBA, if valid, would be a purchase of services by the Township and therefore violate §1/85-30.

Local 150’s argument that Mr. Gasser claims the authority to sign collective bargaining agreements overlooks his consistent position that such authority is subject to Board approval.

See November 16, 2017, Transcript (Local 150’s Ex. B) p.32 ll.13-16, p.35 ll.9-11, p.36 l.24-p.37 l.2,
p.42 ll.11-15, quoted supra.

Mr. Gasser, unlike Local 150, has not asserted unilateral authority to enter into such an agreement. At-will employment, even if it exceeds $20,000, differs to the extent that it is not a binding contract and terminable at any time during his term of office. Id. at 36 ll.2-7.

The brief goes on to argue that “The Purported CBA Unlawfully Strips the Highway Commissioner of Statutory Powers.”

Mr. Gasser recognizes his authority is subject to the Board’s approval and other law.

Local 150’s p.9 mischaracterizes Mr. Gasser’s position, accusing him of arguing the purported CBA is
unlawful because its terms “prevent him from hiring and firing whomever he pleases (and having carte blanche with respect to other actions).”

Its p.10 also mischaracterizes Mr. Gasser’s argument as unlawful, “because Gasser wishes to take certain actions which are regulated by the CBA.”

The purported CBA is invalid for the reasons stated in the Amended Counterclaim and herein.

But Local 150 also must be subject to the law.

Even if 5 ILCS 315/21, which expressly states it is “[s]ubject to the appropriation power of the employer,” authorizes multi-year collective bargaining agreements as Local 150’s p.10 argues, such agreements are subject to other law and public policy, including the right of the Township Board to approve all contracts exceeding $20,000, to levy taxes, and pay proper bills.

See Dept. of Cntrl. Mgmnt. Svcs. v. AFSCME, 51 N.E.3d 738, 749 (Ill. 2016); accord, Ill. Collaboration v. Dimas, 81 N.E.2d 63, 80-81 (1st Dist. 2017).

(Multiyear agreements do not extend past the incumbent’s term if they occur under 605 ILCS 5/6-201.20, which provides authority entered “within 4 months after the highway commissioner takes office.”)

The purported CBA contradicts Illinois holdings against allowing elected officials to tie the hands of their successors.

Commenting on a case cited by Local 150, Hanlon writes,

This differs from the present case, where evidence of collusion surrounds the Miller family and the Algonquin Township Board has not ratified the purported CBA—unless Local 150 contends the highway commissioner is a feudal lord with power to obligate the purse with impunity.

The brief then moves into the argument that the purported agreement was made in violation of the Open Meetings Act and is therefor invalid.

60 ILCS 1/80-10(e) states “[a]ll meetings of the township board shall be open to the public as provided in the Open Meetings Act.”

The purported CBA violates not only that portion of the Open Meetings Act which appears at 5 ILCS 120/2(a) but also 5 ILCS 120/2(e) (“No final action may be taken at a closed meeting. Final action shall be preceded by a public recital of the nature of the matter being considered that informs the public of the business being conducted”), which paragraphs 58 and 59 of the Amended Counterclaim show did not occur…

The purpose of the Open Meetings Act, 5 ILCS 120 et seq., is “opening the processes of government to public scrutiny.” See Peo. ex rel. Difanis v. Barr, 414 N.E.2d 731, 735 (Ill. 1980).

The court should deny the motion to dismiss so the CBA purportedly signed between Mr. Miller and Local 150 can be invalidated, not only because it infringes the Board’s authority but also because it violates 60 ILCS 1/80-10(e) and 5 ILCS 120/2(e), improperly attempts to circumvent the Open Meetings Act, and defies that Act’s purpose.

The Highway Commissioner has an interest in actions of the Board relating to contracts affecting his office and duties.

That no Board action is identifiable regarding action on a CBA when it was required, shows the purported CBA is a nullity.

“Direct Dealing” is the next argument advanced for invalidating the Local 150 collective bargaining agreement.

The illegality of a “side deal” such as the purported collective bargaining agreement is clear.

Cases are cited after which this appears:

Here, Miller not merely exchanged information, but was colluding for improper purposes.

Following is

Local 150 does not have exclusive authority to claim employee direct dealing (“had Local
150 objected”), p.12; no caselaw supports the claim…
Mr. Miller knew Local 150 could not have believed it had an enforceable agreement, for business transactions involving units of government are governed by different rules than nongovernmental entities…

A contract signed by government units prohibited by law is void and cannot thereafter be rendered valid by estoppel or ratification…

A contract signed by government units prohibited by law is void and cannot thereafter be rendered
valid by estoppel or ratification.

Then there is a summary of the reasons the counterclaim should not be dismissed ending in

Amended Counterclaim ¶¶72-76, allege public funds used to fund the purported CBA would not be for a public purpose, but rather to interfere with Mr. Gasser’s performance of his duties in violation of Article 8, §1(a), of the Illinois Constitution (“[p]ublic funds, property or credit shall be used only for public purposes”), and benefit the Miller family and its affiliates.

Since Miller was not authorized by law to incur obligations for payment not approved by the Board, the purported CBA also violates Article 8, §1(b), of the Illinois Constitution: “[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.”

These are likely criminal acts. People v. Howard, 228 Ill.2d 428, 437 (2008) (official misconduct predicate act for public purpose criminal violation).

Finally comes the conclusion asking for the dismissal of Local 150’s motion to dismiss the Amended
Counterclaim.