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Minutes - 01/31/2005 - Board of Trustees2. 3. MINUTES OF THE JANUARY 31, 2005 SPECIAL MEETING OF THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF OAK BROOK APPROVED AS WRITTEN ON FEBRUARY 8, 2005. CALL TO ORDER: The Special 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 7:30 p.m. The Pledge of Allegiance was given. ROLL CALL: Village Clerk Linda Gonnella called the roll with the following persons PRESENT: President Kevin M. Quinlan, Trustees Stelios Aktipis, John W. Craig, Susan Chase Korin, Elaine Zannis, and Asif Yusuf. ABSENT: Trustee George T. Caleel. IN ATTENDANCE: Richard B. Boehm, Village Manager and Kenneth Kubiesa, Village Attorney. NEW BUSINESS: a. A Resolution to Approve an Attorney to Represent the Village of Oak Brook in the Elmhurst Builders Case Mr. Quinlan explained that a resolution has been prepared by Trustee Aktipis and that the Board of Trustees has just received this document at the meeting. Trustee Aktipis explained that the matter he is presenting before the Board of Trustees relates to the appointment of an attorney to represent the Board of Trustees relative to the Elmhurst Case vs. Oak Brook. He stated there are issues that he would like to address before discussing the resolution. He commented of a letter or a memo that Attorney Kubiesa provided the Board dated January 27, 2005. He explained that he was in court on Thursday, January 27, when Attorneys' appeared on his petition to intervene and disqualify the Kubiesa firm from representing the Village in this particular case. Attorney Kubiesa was not present and contrary to what Attorney Kubiesa has stated in his letter, the Judge did not rule that Attorney De Ano's appearance was proper. His attorney advised the fudge that it was his belief that the Village Board was meeting tonight to consider whether Mr. De Ano would be retained to represent the Village in the Elmhurst case. The Judge suggested, and the attorneys' agreed, that the case would be continued for one week to determine the Board's VILLAGE OF OAK BROOK Minutes Page 1 of 12 January 31, 2005 3. decision. In the interim, Mr. De Ano may file his appearance. His attorneys' have obtained the transcript and that he believes the transcript will reflect the two sequences of events, which are not what was represented in the letter that Attorney Kubiesa wrote on the matter. He further commented that Attorney Kubiesa suggested that the Board has no right to approve the appointment of Mr. De Ano. The only basis for the Village President to appoint Mr. De Ano without Board approval would be in the form of a temporary appointment. Temporary implies that Mr. De Ano would be replaced at some point and the Village ordinance permits temporary appointments for only thirty to sixty days, with the President renewing after thirty days. He questioned what would be the point of the Village President appointing someone on a temporary basis, and then having that attorney be replaced in thirty to sixty days with a permanent attorney He stated that President Quinlan had not made an attempt to propose Mr. De Ano as an appointee. This matter was not discussed with the Board of Trustees of the possible impact of Mr. De Ano involved in the Elmhurst Builders case relative to his more important representation in the Village vs. the DuPage Housing Authority litigation. Trustee Aktipis suggested that Attorney Kubiesa filed papers in the Elmhurst Builders case in which he admits that Trustee Aktipis may be personally implicated from a liability standpoint. He stated that Attorney Kubiesa filed these papers, without Board approval, which are factually wrong. He remarked that it is only due to the Village Attorney's action that he was forced to enter into the Elmhurst Builders case. Trustee Aktipis suggested that Attorney Kubiesa did all the reviews on the request for water near the site proposed for Elmhurst Builders. He should have recognized that his advice was substantially deficient otherwise the Village would not be defending a lawsuit that Attorney Kubiesa thought he would easily have been able to dismiss. He suggested that the Board would need an independent investigator to examine Attorney Kubiesa's actions relative to the Elmhurst Builders case and the advice he rendered regarding the settlement of the Housing Authority case. Trustee Aktipis indicated that he was upset that the Village President has already assigned Attorneys Kubiesa and De Ano to comment on the defense and indemnification of a Trustee, when the request has not been made formally. As a result of his being involved into the Elmhurst Builders case by Attorney Kubiesa and his actions, he has advised the Board of Trustees of his intent to seek idemnification at some point. It is not certain that the request will be made to the Village. This indemnification could come from Attorney Kubiesa and his VILLAGE OF OAK BROOK Minutes Page 2 of 12 January 31, 2005 3. firm in an issue that Trustee Aktipis will have his attorneys to determine and by the courts. At this time Trustee Aktipis indicated that he is only proposing a resolution that will address the issue of who will be representing in the litigation of Elmhurst Builders. He asked Village Manager Boehm to read the resolution in its entirety. President Quinlan then responded to Trustee Aktipis' request. He stated that it was Trustee Aktipis' request to have Attorney Kubiesa and his firm removed from the Elmhurst Builders case. He clearly stated that any litigation that comes before the Village is supposed to be handled at least initially, not fully, by the Village Attorney. This is clearly outlined by State Statue and what the Village Attorney's job is in representing the Board. Attorney Kubiesa is the Village Attorney who was unanimously elected by the Board of Trustees. He noted that it was Trustee Aktipis' request that the Board was to meet tonight to discuss supposedly in closed session but again Trustee Aktipis requested to have it in an open session. He suggested that this case in all likelihood would have already been dismissed without Trustee Aktipis' interference in holding up the Village Board's ability to do so. President Quinlan commented that it is on the record that Trustee Aktipis was to supply the President and the Board his concerns as to why Mr. De Ano would be inappropriate representation for the Village in this particular case. He indicated that there would not be another attorney without his appointment and the Board of Trustees approval unless it's done so through temporary appointment. He inquired as to why the Board does not have the information that Trustee Aktipis was defending so vigorously at the last Village Board meeting. Trustee Aktipis responded to President Quinlan with the following comments that he made at the last Village Board meeting that Mr. De Ano has some serious conflicts of interest. He suggested one reason is that Mr. De Ano is potentially a witness in the case of Elmhurst Builders and he has been involved as the attorney in the DuPage Housing Authority case. He believes that these reservations existed not only by him but also with other Trustees. He further believes the resolution that he has presented to the Village details the reason for which Attorney Kubiesa cannot make the appointment Trustee Aktipis suggested that Mr. De Ano is a temporary appointment is an absurd way to move. He asked why the Board would give the case to someone who would have the authority to handle it only for the 30 -60 days. He recommended moving forward as rapidly as the Board could obtain an Attorney that would handle the case on a permanent basis with the approval of the VILLAGE OF OAK BROOK Minutes Page 3 of 12 January 31, 2005 3. Trustees. President Quinlan inferred that if Trustee Aktipis had not interfered in this case that it should have been dismissed a week ago. He stated that he has made a conciliatory gesture toward Trustee Aktipis' request if he could show just cause as to why Mr. De Ano should not be representing the Village. Trustee Aktipis stated that he would not continue to engage in an exchange that has no real purpose other than an attempt to accuse him for something that he believes he needs to do to defend himself. He suggested that the Village President has put him and certainly the Village Attorney in a precarious position where he could have encountered legal liabilities, personal liabilities, while acting in good faith and upon the President's instructions and the instructions of this Board for the benefit of the Village. Namely, trying to resolve an issue in which the Village was trying to negotiate. He suggested that the Village Attorney, instead of following his statutory duty to do what he is instructed to do by the Board; has chosen to file an affirmative defense in which he attempted to implicate Trustee Aktipis in the matter that could be damaging to himself personally. President Quinlan remarked that Trustee Aktipis is welcome to take actions on his own personal time, with his own personal money that is necessary. Village Manager Boehm noted that this is a sixty -day temporary appointment and asked what is the likelihood this case would be resolved within those sixty days. He suggested that if the case is completed in two, three, four or five weeks that it really is a moot point. Trustee Yusuf remarked that he thought the Board had a pretty good agreement to go into closed session to discuss specifics of this question of a potential conflict of interest or other circumstances that would preclude this. He would have welcomed it and would have looked at the facts with an open mind. Now the Board is not going into closed session, which was the purpose of this meeting and he commented that it would have been nice to know this ahead of time and to leave it on the agenda. He remarked that the Board could have chosen not to go into a closed meeting but at least the Board would have an option. He suggested that he does not think it is appropriate to go into details in open session and that a think closed session is the place for it. He stated that he would need to review this further and maybe ask the Village Attorney some questions. He stated that the Board deserves a reasonable amount of time to digest the information and make a decision. Trustee Aktipis replied that the reason of the Open Meetings Act has been to protect the community. It was used to limit closed sessions in matters that VILLAGE OF OAK BROOK Minutes Page 4 of 12 January 31, 2005 3. could be aired in public and not hidden from the residents. He believes that many municipalities have abused that possibility and have discussed in closed session's things that should see the light of the day. He did not see anything here that may create any liability for the Village. Open discussions of how the Board will deal with this case need not be hidden from anybody's sight. President Quinlan asked Trustee Aktipis to show him some legitimate reason, privately or openly, which backs up his suspicions that Mr. De Ano is not proper representation. He offered Trustee Aktipis to provide him the information and he will consider it. Trustee Aktipis stated that President Quinlan received the information on January 28t1'. President Quinlan responded that it was just given to him. Trustee Aktipis indicated he had sent the information to Attorney Kubiesa on January 28'1'. Again, President Quinlan stated he had just received the document. Trustee Craig explained that he attended the winter carnival yesterday and spoke to various people in the Village and the general opinion of the people is that they are sick and tired of some of these proceeding, on both sides. He feels that there comes a time when one must compromise and politics means coming to a compromise. He has two more years in his term and he likes the word conciliation and compromise. He remarked that he wants all these lawsuits and bickering to end as the Board is not making any progress either way and the Board needs to think about working things out that will be acceptable. The Board needs to think about what's best for the Village of Oak Brook and this may not be it. Trustee Aktipis responded that if the Board were to approve Mr. De Ano to take over the Elmhurst case, the Board is compromising his ability to act for the Village in the Housing Authority case. As the Trustees know, the Board has been very happy with him as he is an excellent attorney. He stated the reason why the Board is discussing this today is because the Board does not want to compromise his ability to represent the Village in that particular litigation by dragging him into litigation in the Elmhurst Builders case. Trustee Craig read a portion of a letter that Mr. De Ano sent today regarding litigation. Trustee Korin interjected that this should not be discussed at thist time as this refers to on -going litigation. Trustee Craig reiterated that he can't understand why Mr. De Ano is not being considered. Trustee Zannis asked Village Manager Boehm read the resolution. President Quinlan explained that he would not take action on any legal VILLAGE OF OAK BROOK Minutes Page 5 of 12 January 31, 2005 3. proceedings on behalf of the Village without properly digesting it and having a realistic discussion with the Village Attorney. President Quinlan asked for a motion to continue this matter until the next regularly scheduled Village Board meeting to allow Village Board members, including the missing member, to have time to read the material and ask the appropriate questions as is the normal practice of this Board. Motion by Trustee Craig, seconded by Trustee Yusuf, to continue this matter to the next regularly scheduled Village Board meeting to allow the Board members, including the missing member, to have time to read the material and ask the appropriate questions as is the normal practice of this Board. VOICE VOTE: Ayes: Trustee Craig and Yusuf. Nays: Trustees Aktipis, Korin and Zannis. Motion failed. Village Manager Boehm was asked to read the resolution. RESOLUTION NO. VILLAGE OF OAK BROOK, ILLINOIS CONCERNING THE RETENTION OF JAMES De ANO WHEREAS, the Eighteenth Judicial Circuit Court for DuPage County, Illinois, upon the motion to disqualify the Village Attorney filed by Trustee Stelios Aktipis and following the agreement of the Village Attorney, entered order permitting the withdrawal of the Village Attorney and the appearance of James DeAno subject to confirmation by the Board of Trustees, as may be necessary, or to Mr. DeAno's and Trustee Aktipis' consideration Mr. DeAno's position as a potential witness; and WHEREAS, the Village Attorney should not represent the Village, the Board of Trustees or any member of the Board of Trustees in the Elmhurst Builders litigation and the Board of Trustees has also determined that it is possible that the Village Attorney should not represent the Village, the Board of Trustees or any member of the Board of Trustees in the DHA litigation; and WHEREAS, the Village Attorney has informed the Board of Trustees that he believes the President temporarily appointed Mr. DeAno to serve as attorney for the Village in the Elmhurst Builders litigation and the Board of Trustees disagrees with this selection because Mr. DeAno may be a witness to material fact in relation to settlement efforts in the DHA litigation that purportedly gave rise to the Elmhurst Builders litigation; and WHEREAS, the Board of Trustees has determined that the Village Attorney failed to act in a fashion that was promised and for which he was VILLAGE OF OAK BROOK Minutes Page 6 of 12 January 31, 2005 3. authorized in defending the Village in the Elmhurst Builders litigation; and WHEREAS, as a consequence of the Village Attorney's failure to act as promised and as authorized, the Village Attorney has created a conflict within the Board of Trustees and within the Village that may have placed the Village at a disadvantage in two lawsuits, namely the Elmhurst Builders litigation and the federal litigation captioned DuPage Housing Authority v Village of Oak Brook, the latter of which remains pending in the United States District Court for the Northern District of Illinois; and WHEREAS, the Board of Trustees relied on the advice of the Village Attorney in determining how to attempt to negotiate a settlement between the Village and the DuPage Housing Authority and the Forest Preserve District of DuPage County in the DHA litigation and the Board of Trustees authorized one of its duly elected trustees, Stelios Aktipis, to act in a coordinated fashion with the Village Attorney in the Village's best interests to pursue a course of settlement recommended by the Village Attorney and concurred in by the President and the Board of Trustees; and WHEREAS, the Elmhurst Builders litigation involves a claim that purports to arise as a direct consequence of the Village's efforts identified in the foregoing recital; and WHEREAS, the Village Attorney was not authorized by the Board of Trustees to file an answer and affirmative defenses in the Elmhurst Builders litigation; and WHEREAS, the Village Attorney previously committed to file a motion or motions to dismiss the verified complaint in the Elmhurst Builders litigation based on his professional opinion that the case seriously lacked merit; and WHEREAS, under Village Code, § 1- 5B- 2(A)(C)(E)(F)(H), the Village Attorney represented the Village, the Board of Trustees and members of the Board of Trustees between January 1, 2004 and through the time of filing the answer and affirmative defenses on December 22, 2004; and WHEREAS, on December 22, 2004, the Village Attorney filed a verified pleading under penalties of perjury that contained an answer and affirmative defenses and he did so under his signature without consulting the Board of Trustees or each one of the members of the Board of Trustees; and WHEREAS, the Board of Trustees believes that the Village Attorney was representing the Village, the Board of Trustees and individual members of the VILLAGE OF OAK BROOK Minutes Page 7 of 12 January 31, 2005 3 Board of Trustees in the Elmhurst Builders litigation and in the DHA litigation and that he was doing so with the assistance of Mr. DeAno who served as the Village's litigation attorney in the DHA litigation at relevant times; and WHEREAS, a member of the Board of Trustees, Stelios Aktipis, appears to have been implicated by the second affirmative defense (the truth of which defense the Village Attorney has sworn to) despite his status as a client of the Village Attorney; and WHEREAS, the Board of Trustees has considered a December 28, 2004 communication from the Village Attorney in which the Village Attorney has stated that Trustee Aktipis should consider retaining personal counsel and the Board of Trustees believes that the only possible basis for this suggestion could arise from the Village Attorney's filing of the second affirmative defense; and WHEREAS, the Board of Trustees has reviewed the second affirmative defense, proceedings in prior Village meetings and the invoices of the Village Attorney and it believes that there is a high likelihood that the Village stands at risk by reason of the Village Attorney's filing of the second affirmative defense in a fashion that includes two allegations that drive a wedge between the Village and a member of the Board of Trustees who was authorized to attempt to settle the DHA litigation along with the Village Attorney who acted simultaneously with the member in taking all steps; and WHEREAS, on a matter that is not one of a temporary nature, the President of the Village has taken action to refer the question of defense and indemnification of a Village Trustee in relation to litigation when the matter of such defense and indemnification was not formally presented and when the issue concerning such defense and indemnification is not one that the Board of Trustees deems to be temporary; and WHEREAS, despite the qualifications of this attorney to respond to the President's inquiry, the Board of Trustees will not participate or authorize the delegation of this responsibility to said attorney because the attorney is the Board of Trustees' preferred attorney in the DHA litigation; and WHEREAS, the President made no effort to seek the advice and consent of the Board of Trustees prior to assigning tasks in addition to the DHA litigation and Mr. DeAno's appointment on a temporary basis can only survive for a maximum of 60 days by ordinance; and WHEREAS, the Board of Trustees wished that the delegations by the President cause no further interruption or confusion in the DHA litigation by placing Mr. DeAno in a conflicted position with respect to either the Village or VILLAGE OF OAK BROOK Minutes Page 8 of 12 January 31, 2005 I Stelios Aktipis, but the President and Village Attorney proceeded to place Mr. DeAno in such a position and further complicated the representation of officials of the Village in doing so; and WHEREAS, the Board of Trustees and each of its individual members continue to rely on the services of James DeAno in relation to the defense of the DHA litigation; and NOW, THEREFORE, be it hereby resolved by the Board of Trustees of the Village of Oak Brook, DuPage County, Illinois: Section One. Retention of James DeAno. The Board of Trustees hereby ratifies the prior retention of James DeAno in the DHA litigation but expressly limits and prohibits Mr. DeAno and his law firm from (a) handling the defense and any other claims that may arise in relation to the Village's interests in the Elmhurst Builders litigation other than, during the period of temporary service, to file and argue (i) a motion for judgment on the pleadings and (ii) a motion to dismiss with prejudice the second affirmative defense (unless independent counsel appointed with the advice and consent of the Board provides a basis for retaining the defense), (b) further handling any communication concerning the Village's obligation to defend and indemnify Trustee Stelios Aktipis and (c) handling any other matter which might create a conflict of interest in Mr. DeAno's representation of the Village and the members of the Village's Board of Trustees in relation to the DHA litigation. Section Two. Direction to James DeAno. The Board of Trustees authorizes and directs Mr. DeAno to fully disclose all facts and knowledge he has concerning and in relation to the second affirmative defense in the Elmhurst Builders litigation, in relation to the two statements of fact contained therein and in relation to the Village Attorney's verification under 735 ILCS 5/1 -109 of the filing of the answer and affirmative defenses. For Mr. DeAno's reference, an attorney from Kubiesa, Spiroff, Gosselar & Acker PC was involved in the services referenced in the firm's invoices for File 77590, subfile 007M, invoice 28412 (this invoice states "Talk to J. DeAno - review letter and e -mail from to and to R. Boehm "). The Board of Trustees requests that Mr. DeAno provide a copy of all invoices pertaining to the DHA litigation Section Three. The President is requested to submit for confirmation appropriate names, firms and qualifications to the Board of Trustees for consideration as the Village's representative in the Elmhurst Builders litigation on a non - temporary basis. As noted above, Mr. DeAno will not be one of them as a result of the Board of Trustees' desire to continue his services without interruption or conflict in the DHA litigation. AYES VILLAGE OF OAK BROOK Minutes Page 9 of 12 January 31, 2005 3. NAYS ABSTAIN:- APPROVED: Kevin Quinlan, President ATTEST: Linda Gonnella, Village Clerk President Quinlan remarked that the resolution sites historical facts and goes into great detail. He suggested that the Board needs some time to review this document, as it is unreasonable to ask the Board to vote on this immediately. It would have been more appropriate if the Board had received this on Friday or could this wait until next Tuesday. Trustee Craig concurred with President Quinlan's remarks. Trustee Korin commented that the original intent of tonight's meeting was to discuss three other lawyers who could possibly represent the Village. In principle, it was agreed. She asked if the Board is still agreeable, then make a decision or a vote to see if there's alternate legal counsel who the Board would be willing to appoint to handle this issue. If it doesn't get carried to another meeting, the proceeding in Elmhurst Building litigation may continue and hopefully be resolved as soon as possible. There appears to be some conflict with Mr. De Ano. If there is any conflict, it's in the best interest of the Village to look at outside counsel and have them represent the Village. President Quinlan offered to submit by Friday three alternative attorneys to represent the Village in this case even though he still doesn't know why Mr. De Ano has a conflict. In order to resolve this issue he will agree to this. Trustee Zannis stated she believes the person that is most in the spotlight by a liability perspective is Trustee Aktipis. Trustee Aktipis commented that the judge is hearing the case Thursday and the issue again of whom Mr. De Ano represents will be there. This resolution is to confirm the Board's appointment of him in that litigation and expresses the Board's interest to prevent him from becoming involved in the Elmhurst Builders litigation that will compromise his VILLAGE OF OAK BROOK Minutes Page 10 of 12 January 31, 2005 3. position. Also it directs him to provide information that will be necessary to clarify the point as to what Attorney Kubiesa has done. He offered that if the Board wishes to dispose of all the Whereas in the resolution and concentrate on Section One, Two, and Three and pass this as a resolution, he will be satisfied to wait until some other time. This would certainly qualify who will be representing the Village on Thursday as there will be no question that Mr. De Ano cannot represent the Village at this time. President Quinlan reiterated again that he would supply all available attorney names by Friday. Motion by Trustee Aktipis, seconded by Trustee Zannis, to approve Sections One, Two and Three of the Resolution. ROLL CALL VOTE: Ayes: 3 — Trustees Aktipis, Korin and Zannis. Nays: 3 — President Quinlan, Trustee Craig and Yusuf. Motion failed. Trustee Aktipis appealed the vote because he thought that Trustee Craig wasn't clear about what was being voted upon. President Quinlan stated that Trustee Atkipis could not appeal because it was on the motion to approve it in its entirety. The Village Clerk has the record of what was being voted upon and in the motion that you made, Trustee Craig cast a no vote. There is no appeal. For the record, 65 ILCS 5/3.1 -40 -40 requires that all ordinances, for whatever purpose, and all resolutions or motions (a) to create any liability against the city or (b) for the expenditure or appropriation of its money shall require the concurrence of a majority of all members then holding office, including the mayor. The same requirements apply to a village. In a village with a president and six trustees, totaling a board of seven members, at least four trustees must concur on the proposition, or three trustees and the president b. An Ordinance Approving A Contract for Investigative Services President Quinlan announced that the Board has had no advanced notice of this until the document was handed to him at 7:30 p.m. this evening. He commented it was the most "piss- poor" way of doing business that he has ever seen. He remarked that at least three Trustees had to have prior knowledge in order for this to be put on the agenda of what this item was and what it was about. He is highly disappointed by the conduct of the three Trustees. He feels this is not good business and this is ambush type business. This is ridiculous that Trustee Aktipis wants the Board to consider this without having any prior knowledge or the chance of doing any investigation on it. VILLAGE OF OAK BROOK Minutes Page 11 of 12 January 31, 2005 3. 9 b. Trustee Aktipis responded that the Board has to keep in mind is that civility and proper manners are part of this Board. He feels that President Quinlan's expressions made are making a mockery out of the dignity of the Board. He asked that President Quinlan refrain in the future from attacking anyone in that fashion. President Quinlan asked that Trustee Aktipis supply the Board with information in the future for proper consideration so the Board does not have to spend a lot of excess time at a meeting. Trustee Aktipis replied that since President Quinlan is so concerned about the manor in which this previous resolution was disseminated, as a courteous to the Village President, he withdrew the second item on the agenda. He offered to postpone it until the next Village Board meeting on Tuesday so the President has plenty of time to review it to his satisfaction and hopefully the other Trustees will have the opportunity also. ADJOURNMENT: Motion by Trustee Craig, seconded by Trustee Yusef, to adjourn the special meeting at8: 25 p.m. VOICE VOTE: Motion carried. ATTEST: s /Linda K. Gonnella Linda K. Gonnella, CMC Village Clerk VILLAGE OF OAK BROOK Minutes Page 12 of 12 January 31, 2005