Minutes - 03/21/2005 - Committee of the WholeMINUTES OF THE MARCH 21, 2005 COMMITTEE OF THE
WHOLE MEETING OF THE PRESIDENT AND BOARD OF
TRUSTEES OF THE VILLAGE OF OAK BROOK APPROVED
AS WRITTEN BY VILLAGE BOARD ON APRIL 12, 2005.
1. CALL TO ORDER:
The Committee of the Whole Meeting of the Village Board of Trustees was called to
order by President Quinlan in the Samuel E. Dean Board Room of the Butler
Government Center at 7:35 p.m. Pledge of Allegiance was given.
2. ROLL CALL:
Deputy Village Clerk Carol Harty called the roll with the following persons
PRESENT: President Kevin M. Quinlan, Trustees Stelios Aktipis, George T. Caleel,
John W. Craig, Susan Chase Korin, Elaine Miologos and Asif Yusuf.
ABSENT: Trustee John W. Craig.
IN ATTENDANCE: Jeffrey Moline, Assistant Village Manager and Darrell J.
Langlois, Finance Director.
3. DISCUSSION OF AD HOC AUDIT COMMITTEE REPORT AND
CONSIDERATION OF ITS' RECOMMENDATIONS:
An Ad Hoc Audit Committee ( "Committee ") consisting of five members was formed as
the result of a motion by Trustee Korin and approved by the Village Board ( "Board ") by
a 6 -0 vote on September 14, 2004. This motion contained 7 specific items of inquiry for
the Committee. In a subsequent motion by Trustee Korin on January 17, 2005,
approved by the Board by a 6 -0 vote, the original motion was amended broadening the
areas of inquiry and reporting for the Committee. In a further motion of Trustee Korin
on March 2, 2005 approved 4 -0 with 1 abstention, the direction to the Committee was
again clarified and additional time was given in which to report. The express purpose of
the Committee, per the September 14th resolution, as amended, is to review the fees of
the law firm of Kubiesa, Spiroff, Gosselar & Acker, P.C., ( "Kubiesa Firm ") of which
the Village Attorney, Mr. Kenneth T. Kubiesa, ( "Kubiesa ") is a principal.
President Quinlan asked for a consensus of the Board of Trustees to request resident
Donald Adler, a member of the Ad Hoc Audit Committee, to participate in the
discussions of the Committee -of -the- Whole. It was a consensus of the Village Board to
allow Mr. Adler to participate in the discussions and President Quinlan thanked him for
his participation.
Trustee Korin suggested going through the report of the recommendations from the
Committee. The Board could come to a consensus whether or not the Board wants to
adopt a recommendation, a form of a recommendation or not adopt it. Since the Village
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3. Manager is not available, she suggested that the direction the Board may wish to
proceed in would be given to Assistant Village Manager Moline if policies or
ordinances were to be changed, adopted and that these be placed on the Board's agenda
for their first meeting in April.
This Committee was formed as the result of various concerns on the part of the Board
relative to the billings, fees, activities undertaken and work performed for the Village by
the Kubiesa firm and Attorney Kubiesa specifically, legal fees and legal work
performed for the Village by other law firms and lawyers, as well as the means by
which all Village legal work is authorized, budgeted, managed, controlled and reported.
At the outset, the Committee believed that it is important to note that the central point of
reference for the Committee in its work, and the Committee believes for the Board in its
decision to establish the Committee, is the comparison of fees incurred by Village under
the current arrangement with the Kubiesa firm to the costs incurred for legal services
under the arrangement with the former Village Attorney - Mr. Richard A. Martens
( "Martens "). Martens was an employee of the Village, whereas the Kubiesa firm acts in
the capacity of an independent contractor in providing legal services to the Village.
Martens served as Village Attorney for approximately 15 years. His most recent
agreement with the Village provided that he would provide 1,000 hours of legal services
annually (average of 20 hours per week).
The costs of basic legal services provided by the Kubiesa firm for the period September,
2003 through August, 2004 increased 38% over the period September, 2002 through
August, 2003 under the Village's arrangement with prior counsel. While there is 6.7%
in basic hours, there is a 38.0% increase in cost for those services. The costs of Village
non -DUI prosecutions handled by the Kubiesa firm have increased approximately 90 %.
Formerly, the Village contracted with a prosecutor who handled all the non -DUI
prosecutions. The Village was charged a court appearance fee of $140.00 with the
former prosecutor while the Kubiesa firm charges the Village $135.00 an hour for each
prosecution day in court with an average charge of two to three hours. A
recommendation by the Committee is to consider returning to the type of fee
arrangement previously utilized to handle these prosecutions.
President Quinlan asked if there is recognition of the increase in fines generated by the
current prosecutor. Trustee Korin responded the number of court dates handled during a
comparable eleven month period, which is October, 2003 through August, 2004, versus
October, 2002 through August, 2003 was identical. The Committee recommends that
the Board return to the type of fee arrangement previously utilized for handling these
prosecutions. The Committee notes that there has been a significant increase in fines
collected by the Village from DuPage County in the period September, 2003 through
August, 2004 vs. the prior one year period, which increase may in part be related to
prosecutions, but may also be related to enforcement efforts in the part of the Village
Police Department. She indicated that Trustee Craig, during this time, was a big
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3. proponent for the Police Department in checking for overweight trucks traveling
through the Village in which there was a concerted effort by the Department to identify
this activity and prosecute the offenders. Input was received from the current Village
prosecutor that the sitting judge could influence many times the amount of the fines.
The prosecutor suggested that a new judge had been more likely to take the prosecutors
recommendation of a higher fee. Trustee Korin believes that these two items of the
overweight truck violation fees and the judge's decision to fine an offender the
recommended fee from the prosecutor has helped increase the fees. Finance Director
Langlois suggested an 8% increase in fine revenues. Trustee Korin projected that in a
years time there has been an 8% increase in fine collections while there has been a 90%
increase in costs associated with collection of those fines.
President Quinlan understood that the net dollar increase in fines exceeds the net dollar
increase in cost of prosecution resulting in a positive cash flow to the Village. Finance
Director Langlois concurred that this was a correct statement. The increase in
prosecutions was approximately $10,000.
Mr. Adler indicated that there is not a clear source of the increase in fine collections.
The fact that there is more fines being written but not all the fines are being contested so
consequently they are not all be prosecuted. He offered that fines could have increased
due to increased enforcement as he suggested there isn't a correlation because the
Village pays for additional funds for prosecution that it is increasing the revenues.
Trustee Aktipis stated that there is a fallacy in President Quinlan's argument that there
has to be a cause and affect relationship between fines and costs of collection. The fact
that the Village is paying the prosecutor more is not the cause of collecting more fines
as it cannot be proven that such correlation exists.
Trustee Korin suggested that the increase in costs of prosecution versus the increase in
fine collections is out of line. President Quinlan stated that the Committee is using a
percentage basis rather than the actual figures.
Trustee Zannis asked if the increase in fine collections relative to overweight trucks is
all a direct consequence of the change of the prosecutor. Trustee Korin remarked no
while President Quinlan suggested, that based on the findings, that he does not believe
one can make that correlation.
President Quinlan commented that he appreciates the work of the Committee on this
recommendation but he does not know that the conclusion should be taken at face value
without further research.
Trustee Zannis offered that the Committee was chartered with an analysis of expenses
not necessarily chartered with an analysis of net to the Village.
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3. Trustee Yusuf suggested that a month or two comparison of the former prosecutor with
the present prosecutor be prepared with a block of certain class of speeding tickets and
analyze the revenue stream from those. He believes this will give a clear picture as to
what really is the case, whether external factors or the diligence of the prosecutor.
Trustee Korin indicated that the Committee was created in the first place due to the
statements made by President Quinlan and Attorney Kubiesa to this Village Board was
that the hiring of their firm would be budget neutral. While having the prosecutor
invoices increase by 90% is not budget neutral. If a study is suggested to why the
revenues increased, that is fine but the net point is there would be $10,000 more in
revenues.
President Quinlan pointed out that he does not believe that the Village increased their
fines or fine limits so therefore the same fine levels were imposed but it appears that
more fines have been collected for the same number of cases. This indicates to him that
the prosecutor was more diligent and was able to collect more fines for the Village.
Trustee Caleel suggested that this is a small part of the Committee's report. He stated
that he has spoken with Attorney Kubiesa as the solution would be to contract for legal
services and that he was amenable to it for a fixed amount of fees. President Quinlan
indicated that he has spoken previously with Trustee Caleel on this issue. Trustee
Caleel recommended that the Board and the Attorney arrive at a figure that is all
encompassing and the Village Board of Trustees must authorize anything outside of it.
Trustee Korin indicated that the total costs of legal services, including the costs of
services of all outside law firms, to the Village increased by approximately 39 %. The
Committee notes the increases need to be looked at against the backdrop of statements
made by Village President Quinlan and the Kubiesa firm that making the switch would
be "budget neutral."
Due to the change to the Kubiesa firm, the Village incurred approximately $33,000 of
costs as transitional costs. $5,000 of those transitional costs were determined to be time
in which the Kubiesa firm and Attorney Martens discussed matters and the expected
overlap that occur when changing firms. The remainder $28,000 was the cost to pay
Attorney Martens for his 90 day clause. This should be reviewed in the future to plan
more wisely what are the transitional costs. The positions affected by this would be the
Village Manager, Village Attorney and other high ranking positions in which this type
of change would occur with an overlap. It should be a policy of the Village that a cost of
those transitions is determined and the overlap of the two people be eliminated if at all
possible or reduced at a month at the most.
The Committee notes that the arrangements between the Kubiesa firm and Ken Kubiesa
as the current Village Attorney are significantly different than those, which existed with
Martens. Martens was an employee of the Village, with a fixed salary for his
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3. approximate half -time employment arrangement. Martens was a very senior attorney,
having significant experience prior to his becoming Village Attorney approximately 15
years ago. In contrast, the arrangement with the Kubiesa firm results in a variety of
staff members of the Kubiesa firm providing legal services to the Village. In the detail
Kubiesa firm bills made available to the Committee, the identity of the attorney working
on the various matters was not given. This procedure was changed commencing with
billings for the month of November, 2004. The identified total hours billed for services
by the Kubiesa firm during the months August, 2003 through August, 2004 ranged from
a low of 114 hours to a high of 197 hours. During this period, the Kubiesa firm billed
the Village a total of 1,692 hours. Due to the lack of identity of the individual Kubiesa
firm member rendering services on matters during this period as it is not clear what
portion of the total hours billed to the Village were those of Kubiesa himself. This is
obviously a significant difference from the arrangement with Martens. Any conclusions
as to the reasonableness of the billing rates of the Kubiesa firm must be made against
this backdrop.
A related observation of the Committee is that from review of the applicable Village
Ordinance and Illinois Statutes, it appears that the appointment as Village Attorney is
personal in nature, and these laws appear to contemplate an individual functioning in the
role of an employee. The applicable Village Code — Section 1 -513 falls under the
heading "Village Attorney and Legal Department." Section 1 -5B -1 — Office and
Department Created — provides "There is hereby created the office of Village Attorney,
in and for the Village. A Legal Department for the Village, consisting of the Village
Attorney, appointed by the Village President with the consent of the Board, and such
additional staff as may be appointed from time to time by the Village Manager as
directed by the Board of Trustees is hereby established." The Committee recommends
that the intent and application of the Ordinance be clarified to ascertain whether, or not,
the retention of the Kubiesa firm and Mr. Kubiesa as Village Attorney are consistent
with the governing Village ordinance and State Statutes. This would require the opinion
of legal counsel, which the Committee believes should not be the Kubiesa firm.
Trustee Korin stated Attorney Kubiesa has expressed his view and asserted to the
Committee that his appointment runs concurrent with the elected term of the Village
President. This arrangement is clearly different than the annual agreements which the
Village had in place with Mr. Martens. In order to determine the Board's ability to
control the Village's legal expenses, the Committee recommends that the Board should
undertake to determine what the proper operation of the Village Code and Illinois
Statute are on this matter and that the Board utilize an attorney other than Mr. Kubiesa
and the Kubiesa firm to make this determination to avoid a conflict of interest. There
have been points of contention between Attorney Kubiesa and various members of the
Board, including the use of another attorney by Attorney Kubiesa to issue warnings to
Village Board members, regarding their questioning of his services and suggesting of
means to control the Village's legal expenses. The Committee notes that under the
Village Code, the Village Attorney works under the direction and control of both the
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3. Village President and Board of Trustees. Also, under Illinois Statute, it appears that the
Board has the authority to eliminate any appointed Village office. Trustee Korin
suggested that it is not the intent to eliminate the position of Village Attorney but it
speaks to the Board having the ability to determine how to pay Attorney Kubiesa and
his firm.
Trustee Korin then discussed maintaining oversight by the Village Manager. In order to
maintain an ongoing oversight the Committee recommended it was pertinent to control
the Village's legal affairs and that the employees should bring all non - routine Village
matters potentially requiring legal service to the Village Manager. She explained that
Finance Director Langlois had indicated that there are some types of situations where
this would be exempt such as the legal secretary.
The Committee recommended enhancing front -end controls to require notification to the
entire Board of all work requested to be undertaken by the Village Attorney by the
Village President or members of the Board. These controls would include 1) a
limitation of some small number of hours, 1 or 2, which the Village Attorney could
devote to initial review and scope of an issue, after which the matter would have to be
brought to the entire Village Board for authorization of the expenditure of additional
time on the matter and 2) all new matters undertaken by the Village Attorney for either
the Village President or an individual Board member must be reported to the Board in
each week's Manager's memorandum to the Board members.
In addition to this, there is a recommendation that it be the responsibility of the Village
Attorney to share any and all research information and opinions with the entire Board
and not only selected individual Board members. This was stated specifically as
Attorney Kubiesa in their meetings stated that he did not believe he had an obligation to
inform the entire Village Board. The Committee recommended that if the Village is
paying for the legal services, that the entire Board should be informed.
Trustee Korin stated the recommendation from the Committee that control procedures
over the processing and payment of Village legal bills should be improved. She stated
that some of these issues have been addressed in an ordinance regarding the number of
days of an outstanding bill. The Committee then recommended a creation of a running
analysis prepared by the Village's finance staff. This would basically detail the time
and fees billed by any and all respective law firms working for the Village including the
Village Attorney on each matter they are handling. The Board would receive a monthly
spreadsheet on legal matters. She indicated that Finance Director Langlois has already
created this as this should be useful for the incoming Trustees. Finance Director
Langlois indicated that the Committee had discussed summarizing the data by matter as
it relates to the Village Attorney and not outside law firms as it would be difficult to do.
Trustee Korin suggested that the DuPage Housing litigation be included. Director
Langlois stated that this would be a different report that has not been designed. Mr.
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3. Adler noted that the other attorneys are working on specific matters so that it would be
germane to the matter when they are presenting matters as opposed to the Kubiesa firm,
which is working on multiple matters. Trustee Korin agreed with that except when the
Village is involved in some sort of litigation like the DuPage Housing Authority as she
believes it behooves the Board and the next Board to know how much is being spent.
Director Langlois responded that something could be designed for this data.
Trustee Caleel indicated that in this particular case our insurance carrier is representing
the Village and therefore why such large bills were necessary from the Village Attorney
who is suppose to be liaison but not handling the case.
Trustee Zannis asked if the Elmhurst Builders litigation is being tracked. Director
Langlois explained that it is being itemized on Attorney Kubiesa's bills. She asked if
there are outside attorneys working on this case. President Quinlan stated that yes there
were as requested by Trustee Zannis. Director Langlois responded that one could add
the total on the Kubiesa bill plus the outside attorney dealing with a specific matter.
Trustee Korin discussed the recommendation that the Village develop an engagement
letter for legal services to be entered into with law firms providing legal services. Such
letters should address all important matters related to the engagement, including agreed
upon rates, specific personnel to be utilized if appropriate, dispute resolution, billing,
termination procedures, etc.
Trustee Aktipis suggested since Attorney Kubiesa did not offer a contract to the Village
as he suggested he would but instead a letter of engagement. As a result of that the
Village Board including the Village President does not have a right of termination until
such time as the Village President's tenure is completed. President Quinlan responded
that Attorney Kubiesa serves at the pleasure of the President and should he desire him to
stay through his term of office that he has been elected to, then he will stay otherwise he
can and will be removed.
Trustee Aktipis stated that if there was x yearly contract like the previous attorney had,
then that would not be a total unilateral decision that the Village President would make
but one that the Village Board as a whole, the corporate authority, would make.
President Quinlan responded that Attorney Martens also served at the pleasure of the
Village President. Trustee Aktipis stated that the corporate authority could have
terminated him after a year contract. President Quinlan explained that he did not have
that contract in front of him but he recollects that is not the case but that the previous
attorney also served purely at the pleasure of the Village President after the appointment
by the Village Board. Mr. Adler suggested that he had yearly contracts. President
Quinlan reiterated that all contracts for appointed officials are null and void upon the
election of the new Village President.
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3. Trustee Aktipis suggested that the Trustees were under the impression that the Board
would receive a contract that would have the provisions that should the attorney not
fulfill the expectations of the corporate authorities as a whole that they would have a
means of handling this matter. Instead the Board was not presented with a contract
because the Board took the presentation of the Village Attorney at face value. The
Board had confidence in the attorney when the Village President suggested he was an
excellent attorney. Because of that the Board did not scrutinize the letter offered and
now that letter allows him to make the argument that he is only subject to the Village
President's decision and not that of the corporate authority.
Under the arrangement of prior counsel, the Village had a fixed salary, fixed number of
hours which was 1,000 hours to meet the Village's routine legal services. The
comparison between the basic services of Attorney Martens and Attorney Kubiesa's
comparative year there was a slight increase. Legal fees paid to firms other than the
Kubiesa firm decreased in the first eight months of 2004 versus calendar 2003 period,
but fees paid to the Village attorney's firms more than doubled. The Village Board
needs to address the question of whether proper processes and controls are in place to
assure that the best legal services providers are being selected at the lowest cost.
Trustee Zannis asked if there was correlation as to how much was the decrease.
President Quinlan explained that Attorney Kubiesa's firm took over the work that was
done from other outside firms. Normally the Village would contract between $250-
$300 an hour to the outside firms because Attorney Martens could not handle that work
or wasn't qualified in that particular scope. Whereas, the Kubiesa firm was qualified to
handle the work at about $160 an hour. Director Langlois explained that the decrease in
outside legal expenses was approximately $30,000. The DuPage Housing Authority
was the significant case in the prior period.
Trustee Caleel pointed out again that all of this could be mitigated by a contract for a
fixed amount of service and the Board of Trustees could approve anything outside of the
realm. Many of these controls would be controlled by a contract.
The Committee observed that specific Village ordinances address the procurement of
professional services. Generally, the governing ordinances require a competitive bid
process for contracts in excess of $10,000. However, there is an exception for contracts
involving professional services of various types of professional services where
competitive bidding may be prohibited or discouraged by the code of professional
conduct applicable to the service providers, under which the Village may enter into
contracts without bidding procedures. There should be a review that takes place every
year of the legal service and consideration should be given to an enactment of an
ordinance requiring and review of these legal services that coincides with the review of
the budget. It was their recommendation that the Board of Trustees has the ability to go
through a request for proposal process to interview outside law firms and lawyers, as it
deems appropriate.
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3. Last, the Committee notes that in its opinion, Mr. Kubiesa did not offer his full
cooperation concerning the Board's legitimate right and the Committee's efforts to carry
out its charge from the Board, to evaluate legal costs incurred by the Village.
Trustee Zannis concurred with Trustee Caleel that there should be a contract by
ordinance as soon as possible. Every appointed position should be by an employment
contract reviewed at some predetermined date that is in concurrence by the Village
President and the corporate authorities.
Trustee Caleel pointed out that it has always been the policy up to the appointment of
Attorney Kubiesa that the Village Manager and all appointees were reviewed on an
annual basis. Attorney Kubiesa does not have a contract. He believes that he is
amenable to a contract and that the contract could be drafted to take into account some
of these problems that arose. A fixed amount of fees for a fixed amount of service
including a number of hours, if desired, and anything outside of that would have to be
authorized by the Board of Trustees. A conference should be held with Attorney
Kubiesa to determine if a mutual agreement could be reached regarding a contract and
what it would entail. He suggested that the Village President and a couple of Board
members meet in this regard. First have one Board member lays the groundwork and
then discuss it with the Village President to reach a general understanding, then perhaps
a closed meeting to finalize this matter.
President Quinlan stated that he is not opposed to developing a written contract
agreement that fixes the Village's costs, the scope of the Village Attorney's position,
agreed upon by the Trustees and the system by which legal opinions and the Village
Attorney's time is used on various fixed Village matters. Many of the Village's legal
costs could be avoided if the Board would use the intelligence, background and
experience of the Village Manager, as he is aware of codes and State Statutes.
President Quinlan again recognized the contributions of Donald Adler for his time and
also Jeffrey Kennedy for his efforts before he resigned from the Committee. He noted a
big change occurred from Attorney Martens tenure that there were several Board
members that made it very clear to him that there was a change desired so he put forth
that change at the request and at his own personal desire to hire a firm. It should also be
recognized that the firm of Kubiesa, Gosselar, Ackler, Kern was unanimously approved
by the Board of Trustees as there has been some differences of opinion since one
particular action in time has occurred. He is concerned that some of these suggestions
in this report may be politically based and may not be rooted in the full sense of fact and
in some cases warrant further investigation such as the prosecutor. He stated that he has
had a previous discussion with Trustee Caleel that much of this could have been
avoided with a contractual basis. He agrees wholeheartedly with the Committee's
report that this is something that should be pursued as long as the proper rules are fixed
to it and he will take this under advisement.
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3. President Quinlan commented that he looked forward to hearing from the Board of
Trustees of their desires for motions to change but that they be placed at the next
regular Board meeting. He would welcome and entertain public discussion at the
Village Board meeting tomorrow evening if the Board wishes to talk of the primary
items they wish to be executed from this report.
Trustee Zannis discussed Item 44, page 3, of the Committee's Report which spoke of
the cost of the transition from one appointed position to another. Transitional costs are
not included and for future Boards this should be included. She requested Village
Manager Boehm to place this under a new action item for the first Village Board
meeting in April on how this could be done preferably by ordinance.
Trustee Aktipis indicated that the cost is important to the Board as it takes seriously its
responsibility to the residents. He believes that when the Board acted upon President
Quinlan's strong recommendation to hire Attorney Kubiesa they did that with the
understanding, which was stated by President Quinlan, that it would not cost anything
more to the Village than the previous attorney did and that it might provide savings. If
the transition costs were known, the Board would have taken a very different position.
He does not believe that President Quinlan's claim that Kubiesa was unanimously
approved by the Board is well placed as he would not have been approved if the Board
was aware of the costs resulting from such an appointment.
Trustee Caleel stated that some things have to be taken on face value and the statement
was made and he believes that it was the Board's responsibility to see that a contract
was drafted that would have imposed it, if that was the understanding, and it wasn't
done.
President Quinlan is not completely convinced that this isn't currently the case based on
all the additional litigation as all parties are guilty of this. It deserves a further review
and he agrees with Trustee Caleel that in order to ensure that the Village gets the best
that locking down a fee for common services be reached. For the record, President
Quinlan indicated that the Village is paying more for a regular hourly rate for Attorney
Kubiesa's opinion than for Attorney Martens for regular legal business. He also pointed
out again that there were several members of the Board and himself that felt that a
change was due and it would be a good thing at that point in time to make it happen.
Trustee Korin indicated that 7. F. of the Report requires an ordinance for a contract that
outlines the work to be done by each individual provider of legal services and all
important matters including rates, personnel, dispute resolution, billing, termination
procedures, etc. It was a consensus of the Board that this recommendation be
implemented.
Trustee Caleel suggested that a control be put in place on who may request written
opinions because it was out of hand and it should be a majority of the Board. Trustee
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3. Zannis asked if some type of vehicle were developed before a Trustee may ask for a
legal opinion that the majority of the Trustees should support that request. Trustee
Caleel recommended that it be brought to a Board meeting requesting a motion for a
legal opinion.
President Quinlan asked the Board to be careful of not allowing a Trustee to ask for a
legal opinion in performing their proper position as a Trustee. He believes that the
Village Manager or Assistant Village Manager could have answered many of the
opinions that were sought prior.
Trustee Caleel suggested this could be a policy, not in ordinance form, for requesting a
legal opinion by the majority of the Trustees.
Trustee Korin explained that Trustee Yusuf made a point, if a Trustee had an issue that
he wanted to speak with the Village Manager on an issue if there was a conflict of
interest and should recuse oneself. Here is an instance where perhaps that this is matter
that a Trustee may not want to bring to the Board meeting publicly. The Committee
discussed that perhaps a small number of hours be set, not to exceed two hours, of any
issue that any Board member including the Village President would want the Village
Attorney to spend time on, then there is a need for consensus of the Board, if it exceeds
two hours. The issue also dealt with dissemination of information that it should be
given to all the Board members. One of the control processes the Committee discussed
was that any matter over two hours that the Village Attorney creates a matter that is
reported to the Board in the weekly Village Manager's memorandum.
Trustee Caleel did not agree with this but recommended that, if it is a significant matter
to a Trustee, the Board of Trustees should agree that the Trustee could receive that
information. He stated that the former attorney was in his office two days a week and a
Trustee could come and visit him during that period of time and he would give a Trustee
his verbal legal opinion. The problem here is that there has been some difficulty
between the Board members and Attorney Kubiesa in believing his particular opinion
and the Board wanted citations, etc. which required him to do further research. If the
Board negotiates a contract, then the Board must negotiate one that has a fixed number
of hours similar to what the former attorney had and, if it is exceeded then the Village is
billed for the excess. It is incumbent upon the Board of Trustees to make sure there
isn't a number of unnecessary opinions.
President Quinlan suggested that the last thing the Board should want to do is over -
regulate everything. A degree of reasonable behavior should be observed. He agrees
with this particular finding that a more specified billing of what the Village is being
billed as it is incumbent on all of the Trustees to read through the packets and know
what the Board is approving.
Trustee Korin remarked that there have been three months of Attorney Kubiesa's hours
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3. that have not been billed to the Village. President Quinlan concurred that this is a very
valid point by the Committee and he agrees with them. It was a consensus of the
Village Board that the Village Manager's memorandum will include a summary of
activities spent by Attorney Kubiesa each week. President Quinlan agreed that this puts
the responsibility on the shoulders of the Board that they are doing their work and also
on the Attorney that the billings are submitted on a regular and timely basis that details
what is involved, then the Board can be informed if this is what the Village Attorney
should be doing.
Trustee Aktipis reflected that the Board has to be conscious of the fact that the Village
Attorney does not represent the Village President or a single member of the Board.
When one of the Board members namely, the President spends a number of hours with
the Village Attorney to prepare a lawsuit against the Trustees, the Board should be
aware of that situation as the Attorney is obligated to share that legal information among
all the Board members. Focusing advice to only one particular member of the corporate
authorities facilitated President Quinlan's plan to sue the Trustees. He believes this is
something that the Board should be very vigilant about that whoever the Village
Attorney may be that he represents the entire Board and every opinion should be shared
at the same time with everyone else.
President Quinlan stated that he did not wish to argue a particular legal case with
Trustee Aktipis but he will take it as an example and not a factual example that he is
trying to represent. However, based on this example he agrees with Trustee Aktipis'
opinion that he is correct that the Village Attorney does not solely represent the Village
President, the Village Manager or the Board of Trustees. The Village Attorney
represents the best interests of the Village and to defend the Village Board as a whole in
representation of the Village of Oak Brook. He agrees that legal advice given on behalf
of the Village to Board members is exactly that and everyone is entitled to that advice.
Trustee Korin reiterated that Trustee Zannis had asked that this be part of an ordinance
but she suggested that it be part of the contract then he is duty bound by his contract.
President Quinlan indicated that he is duty bound by State Statute.
Trustee Zannis asked Finance Director Langlois if the Kubiesa firm submitted the legal
expenses for representing Village Manager Boehm and Trustee Yusuf. Director
Langlois could not answer that question. President Quinlan stated that his
understanding is all bills associated with that case have been submitted to Judge
Wheaton. Trustee Zannis asked to see a copy of Kubiesa's bills. President Quinlan
stated that he believes that it could be made available but that all bills including Klein,
Thorpe, Jenkins and Luetkehans have been submitted to the judge.
Trustee Zannis asked at what point the Village Attorney recuses himself from activity.
President Quinlan offered that this is a discussion outside of the realm of what the Board
is addressing at this time and that he did not have an answer. Trustee Zannis stated the
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3. struggle of the formation of the Ad Hoc Audit Committee came from the person who
was being investigated that seems to her to be a conflict. She remarked that the
representation of Manager Boehm and Trustee Yusuf by Attorney Kubiesa, who
provided counsel to the Village President on the litigation, appears to her to have been a
conflict. She suggested that the dispute with Attorney Kubiesa relative to special
meetings versus non - special meetings as they appear to be in conflict. At what point,
does the Board indicate to the Attorney that he cannot address that issue or file a legal
opinion.
President Quinlan corrected Trustee Zannis in that he had separate counsel as Attorney
Kubiesa did not advise him on the case that is currently in the courts. He is the attorney
defending Village Manager Boehm and Trustee Yusuf. Trustee Zannis stated that he
billed 48 hours prior to the litigation relative to that issue and he did not talk to any of
the Board members of this.
President Quinlan stated that he needs to be on record to make it clear that Phil
Luetkehans is his attorney of record, which has been filed with the judge. In regards to
Trustee Zannis' opinion on the special meeting versus non - special meeting the Trustees
may not agree or like his opinion but it is not a requirement or should it be a
requirement for anyone to recuse himself. He gave his legal opinion and it coincides
with the Village Clerk and the Clerk's attorney that he was correct in his opinion.
Trustee Zannis asked what the 42 hours billed to the Village was. President Quinlan
could not answer the question. Trustee Aktipis stated that one of the problems is that
when a Committee has been appointed to investigate Attorney Kubiesa and he is the one
who is adverse to that investigation, it is not appropriate for him to pass legal judgment
as to the appropriateness or not appropriateness of the appointment of such a committee.
He believes there is a clear conflict of interest and, if Attorney Kubiesa does not
recognize it, then the Village President should recognize it.
Trustee Caleel again reiterated that, if the contract stated anything other than the routine
matters, he would have to get Board approval. He suggested that Attorney Kubiesa
represented only part of the Board of Trustees rather than all of them.
Trustee Zannis agreed that she did not like the calling of the special meeting as he did
not represent her in filing his opinion. Trustee Caleel offered that Attorney Kubiesa
filed some opinions that he was not asked to do. Trustee Zannis suggested that he was
asked for his legal opinion on behalf of the Village President. President Quinlan
responded to her that this was not a fair statement as he gave a legal opinion. The Board
asked for the Attorney for a status of the meeting and he gave his legal opinion, which
the Village Clerk concurred with and her attorney. Trustee Zannis responded that
Attorney Kubiesa gave the Village President that information at 3:30 p.m. and he
canceled the meeting scheduled for 4:30 p.m. rather than informing the entire Board of
Trustees. She suggested that if the Board had known that the Village President was
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3. consulted that he was going to call a special meeting and three of the Trustees had made
a telephone conversation then the meeting would have been held. He would not address
this issue as Trustee Zannis has sat as a Board member for four years and she should
know the rules.
Trustee Zannis stated that those rules have never been addressed. Trustee Caleel
suggested that the Board is discussing solutions and to move on.
Trustee Yusuf clarified that there was a point raised where he raised a question of
potential conflict of interest. For everyone watching he does not believe that he has a
conflict of interest but he thought of a possible scenario that could occur. Whereby,
Trustee Yusuf may feel he has a conflict and he should be able to contact the Village
Attorney and explain the situation and ask him if it is a conflict. If it is determined that
it is, then everyone on the Board should know of it but if it isn't, he does not believe that
it is anyone else's business and it should not be disseminated any further. There will be
situations like that and the Board has to allow some leeway to deal with this that would
only pertain to an individual in nature. A two hour limit is fine with him on this issue
and information should be disseminated to everyone when the Village Attorney is
engaged with Village funds to do work.
Trustee Caleel offered that, if a Trustee is asking an attorney to spend two hours on a
matter that one is asking for a lot as it would cost $300 or $400 opinion which should be
subject to approval of the Board of Trustees. President Quinlan concurred with this
comment. If asking the Village Attorney a question to recuse oneself from a matter,
then it is appropriate.
President Quinlan stated the Board has heard the Report and requested a motion to
adjourn.
Trustee Zannis reiterated her four points that 1) a dialogue will be started to enter into a
contract with Village President Quinlan, Trustee Caleel and Village Attorney Kubiesa;
2) that tomorrow night under new business Trustee Zannis will discuss a request, in
ordinance form, to identify all costs relative to the separation of an appointed position;
3) that tomorrow night under new business Trustee Zannis will discuss to give direction
for an employment contract for all appointed positions annually and 4) that a week from
Friday that the Village Manager's memorandum will include a log of legal activity
including the financials.
Finance Director Langlois explained that there was discussion that staff would
summarize by matter on Attorney Kubiesa's bills and make that an attachment to a
regular agenda item as they are presented to the Board. The inclusion in the Village
Manager's memorandum was any new cases open by the Village Attorney not legal
summaries of all the cases that are pending by multiple attorneys.
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3. President Quinlan stated that this did not need to be delayed to the following Board
meeting as it can be addressed tomorrow at the Village Board meeting by directing the
Village Manager on behalf of the Village Board to do this. He asked that the Board
give the Manager some time to work on a comfortable format for he and the Village
Attorney to communicate on this matter.
Trustee Korin thanked resident Donald Adler, Finance Director Langlois and Attorney
Kubiesa for all of their efforts including Trustee Atkipis.
4. ADJOURNMENT:
Motion by Trustee Caleel, seconded by Trustee Yusuf, to adjourn the Committee-of-the -
Whole Meeting at 9:10 p.m. VOICE VOTE: Motion carried.
ATTEST:
s /Linda K. Gonnella
Linda K. Gonnella, CMC
Village Clerk
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