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Minutes - 03/02/2005 - Board of TrusteesMINUTES OF THE MARCH 2, 2005 SPECIAL MEETING OF THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF OAK BROOK APPROVED AS WRITTEN ON MARCH 16, 2005. Village Clerk Linda Gonnella announced that in the absence of Village President Kevin Quinlan she requested a motion from the floor to appoint a Temporary Chairman. Motion by Trustee Zannis, seconded by Trustee Korin, to appoint Trustee Aktipis as the Acting Chairman of the Special Village Board meeting. VOICE VOTE: Ayes: Trustees Aktipis, Caleel, Korin and Zannis. Nays: None. Motion carried. Chairman Aktipis stated that this is a Special Meeting of the Board of Trustees called by Trustees Aktipis, Korin and Zannis. The meeting was noted by communicating directly with Assistant Village Manager Jeffrey Moline to whom he suggested that on behalf of himself-and Trustee Zannis that they were calling a meeting and that he would also hear directly from Trustee Korin through e -mail which occurred through his understanding. 1. CALL TO ORDER: The Special Meeting of the Village Board of Trustees was called to order by Chairman Aktipis in the Samuel E. Dean Board Room of the Butler Government Center at 7:35 p.m. 2. ROLL CALL: Village Clerk Linda Gonnella called the roll with the following persons PRESENT: Trustees Stelios Aktipis, George T. Caleel, Susan Chase Korin, Elaine Zannis, and Asif Yusuf. ABSENT: President Kevin Quinlan and Trustee John W. Craig. Trustee Asif Yusuf arrived at 7:45 p.m. The Pledge of Allegiance was given. Chairman Aktipis stated that the first item on the Agenda would be a motion that the meeting was lawfully called by giving 48 hour notice to Assistant Village Manager Jeffrey Moline at the request of Trustee Zannis, himself and directly by Trustee Korin and that meeting was notified on the same day with an agenda provided by the Village Manager and the Village Clerk which everyone has received in a timely fashion. VILLAGE OF OAK BROOK Minutes Page 1 of 12 March 2, 2005 2. Motion by Trustee Zannis, seconded by Trustee Korin, that the Special Meeting of the Board of Trustees of March 2, 2005 was a properly noticed meeting. VOICE VOTE: Ayes: Trustees Aktipis, Caleel, Korin and Zannis. Nays: None. Motion carried. 3. VILLAGE PRESIDENT'S OPENING COMMENTS: None was presented as President Quinlan was absent from the special meeting. 4. UNFINISHED BUSINESS: A. A Motion to Engage an Investigator for Review of Work of the Village Attorney as Outlined in Motion Passed by the Board of Trustees at their Meeting of February 22, 2005. Chairman Aktipis stated that after the Board reviews this matter and if a motion is presented on the floor then the Board would ask Attorney James Figliulo to present a proposal relative to his possible engagement by the Board of Trustees and by the Village of Oak Brook to carry out an investigation. Motion by Trustee Zannis, seconded by Trustee Korin, to direct the Village Manager, on behalf of the Village, to contract with James R. Figliulo for investigative services pursuant to the engagement which will be provided to the Village Clerk at the rate set forth not -to- exceed $15,000 for the scope described in the February 22, 2005 motion adopted by the Board of Trustees and that the Village Manager issue payment of a deposit against future hourly billings of the investigator in the amount of $15,000 at the time of delivery of the signed contract. James R. Figliulo addressed the Board that he has spoken briefly to the Board of Trustees today regarding this matter and he has reviewed the minutes from the last Board meeting. He indicated that he is a principal and President of a law firm in Chicago concentrating their practice in litigation and dispute resolution. He remarked that he is an experienced trial lawyer and understands that the Board is interested in an investigation to determine the propriety of conduct by the Village Attorney in connection with certain litigation. He has not reviewed the underlying litigation but he is prepared to review any materials that may be supplied to him to evaluate the propriety of the conduct and whether the scope of authority of the Village Attorney has been exceeded in connection with pending litigation. Their hourly rates are higher than what they would be charging for the municipal work for and they are prepared to proceed at $250 an hour for his time and $200 for his partner Mark Porter whose resume has been supplied to the Board of Trustees. VILLAGE OF OAK BROOK Minutes Page 2 of 12 March 2, 2005 4. A. Chairman Aktipis pointed out that none of the Trustees or himself have had any previous business association or client /attorney association with him. He indicated that he did not know of his existence until a few days ago. Mr. Figliulo has been provided with the motion passed by the Board of Trustees and he has received no other information that in anyway would bias or prejudice his position in terms of this investigation. He explained the reason Mr. Figliulo had been invited to the Board meeting that the Trustees wanted to make certain of two things: 1. If there is an issue for which Attorney Kubiesa needs to be investigated, that the Board does not proceed without having an adequate investigation of the facts in all fairness to him by an independent party and he is a highly qualified independent party. 2. The Board does not want to proceed with any other action against the Village Attorney unless there is a basis for that and they want the Village to be protected and that is really the basis for which the Board has asked him to participate in that investigation. Mr. Figliulo explained that he understood that he would not take any action at all or necessarily recommend any action at this time. His understanding is that he will investigate the facts and circumstances primarily relating to a particular piece of litigation and any other matters that have been referred to this agenda or minutes of this meeting and determine, based upon their investigation, there is any basis for concern or further action and be acting solely as an investigator and consultant in that regard. Trustee Zannis asked to add to the motion that the Village Clerk produce a type written verbatim transcript of the closed session meetings of April 13, 2004 and May 25, 2004 that deal with the DuPage Housing Authority litigation and provide the investigator those` transcripts. Trustee Korin asked Mr. Figliulo if he had seen the motion that the Board passed at their last meeting outlining the scope of the investigation. Mr. Figliulo indicated that he has a copy of the agenda but that is all that he has of the meeting. He suggested that. he came to the meeting with ignorance of the facts but an open mind without really any knowledge of the law firm involved. He does not know the Village Attorney or his firm nor does he know what the underlying facts are of the litigation. He does bring to this assignment substantial experience in litigation including litigation involving law firms, lawyers, governmental bodies, claims by and against governmental entities. He brings experience to this but he has a clean slate with respect to knowledge of the underlying dispute or any of the relationships that may or may not exist. VILLAGE OF OAK BROOK Minutes Page 3 of 12 March 2, 2005 4. A. Trustee Korin inquired if this endeavor would take a month, two months or six months. Mr. Figliulo indicated that he did not know the time frame as it depends on the volume of work involved, as he has been asked to limit the time spent based on his hourly rate not -to- exceed the cap. He is prepared to do so therefore, he would try to understand the scope of the issue, the volume of relevant material that he would need to review and then figure out how he could best address the most important concerns within the budget that has been provided. Chairman Atkipis stated to let the record show that Trustee Asif Yusuf entered the meeting at 7:45 p.m. Trustee Korin inquired if Mr. Figliulo would provide some outline. Mr. Figliulo stated that he would initially provide a simple engagement letter that would recite what he basically stated at the Board meeting without doing any extensive study. The first step would be for him to collect whoever is providing him information that maybe relevant to the scope of the assignment. He would try to understand what that material is and figure out what is the most efficient way to understand it and make whatever analysis he would need to answer the Board's questions. It would be helpful if he had a person or group of persons designated to answer questions during the scope of this process without wasting time or energy. Trustee Zannis asked if Mr. Figliulo would provide a written document or summary of his opinion. Mr. Figliulo explained that he would provide a summary, as it is necessary for him to understand the nature of the problem, digest the important material and first report verbally to the Board or to an individual what he perceives as the problem. It would include his preliminary review of the circumstances, how does the Board want him to proceed, how much time has been spent, how much money it has cost and how should the matter be finished. As again he reiterated it is difficult for him to estimate as he does not know what is the litigation and whether the Village Attorney has been handling the litigation appropriately and in the best interest of the Village. Village Clerk Gonnella asked to speak at this point. She indicated that she has contacted Attorney Stu Diamond of Ancel, Glick and Diamond regarding the request of the Village Clerk to provide verbatim transcripts of closed session minutes to the investigator. She explained that in his opinion, which she did not have in written form, that it is violation of the Open Meetings Act to release verbatim closed meeting minutes to the investigator. Chairman Aktipis stated that this was the motion that Trustee Zannis put forward and he asked Mr. Figliulo whether if the Board of Trustees released VILLAGE OF OAK BROOK Minutes Page 4 of 12 March 2, 2005 4. A. any confidential information to him would that be protected. Mr. Figliulo could not answer that question. He would like to review this further as he is aware of their firm and he would like to understand the basis of this. He indicated that he would not want the Board of Trustees to submit to him anything that would jeopardize the confidentiality of information without having the opportunity to determine the answer of his question. He stated it would be inappropriate and not a wise thing to do. Chairman Aktipis suggested that no information be released to Mr. Figliulo until such time that the Board of Trustees is confident that the confidentiality of that information relatively to the closed meetings is not compromised. Mr. Figliulo stated the Board could provide him public information to get him started such as the information of the lawsuit, any particular positions that have been publicly taken that the Board considers to be questionable for him to review. This is public information that he assured the Board of Trustees could not compromise any confidentiality. Private information or if anyone is asserting that they may jeopardize confidentiality then he recommended that this be reviewed more carefully. Chairman Aktipis requested Trustee Zannis to amend her motion that those transcripts are prepared by the Village Clerk as soon as possible and made available to the Board of Trustees and any further dissemination that would occur after proper legal advisement. Motion by Trustee Zannis, seconded by Trustee Korin, to amend the motion. Trustee Zannis asked for a clarification that the minutes be transcribed and given to the Board of Trustees and then the Village Clerk will seek further clarification and if appropriate will be released. Trustee Korin stated that she thought these minutes were already transcribed. Chairman Aktipis indicated that in the letter that Village Attorney Kubiesa sent the Board on Friday that this requires an expenditure of funds and he would await the veto of the mayor before he does this. The Board is reiterating this today and the mayor will have to veto this to the next regular Board meeting on Tuesday. Trustee Zannis asked if President Quinlan would veto this based on funding or based on an opinion. Chairman Aktipis stated he would veto this based on funding in the letter. Trustee Zannis again requested that the Village Clerk receive a legal opinion from Mr. Diamond regarding the release of closed meeting minutes. VILLAGE OF OAK BROOK Minutes Page 5 of 12 March 2, 2005 4. A. Chairman Aktipis asked Trustee Zannis to restate her motion at this time. Motion by Trustee Zannis, seconded by Trustee Korin, to direct the Village Manager, on behalf of the Village, to contract with James R. Figliulo for investigative services pursuant to the engagement which will be provided to the Village Clerk at the rate set forth in the amount not -to- exceed $15,000 for the scope described in the February 22, 2005 motion adopted by the Board of Trustees and that the Village Manager issue payment of a deposit against future hourly billings for the investigator in the amount of $15,000 at the time of delivery of the signed contract and direct the Village Clerk to provide a type written verbatim transcript of the closed session proceedings of April 13, 2004 and May 25, 2004 that deal with the DuPage Housing Authority litigation and to provide that to the Trustees. Trustee Yusuf indicated that there is somewhat of a cloud over these proceedings as to the legality of them therefore, it is his intention to abstain from any votes taken with that regard as he wanted to make that clear to everyone sitting there. Chairman Aktipis stated that it is duly noted. Trustee Yusuf further stated he had never spoken to Mr. Figliulo and asked if there is any background information on him and his law firm. Chairman Aktipis stated it was faxed to him. Mr. Figliulo indicated he had material to give to Trustee Yusuf in this regard. Chairman Aktipis called the question. ROLL CALL VOTE: Ayes: 4 - Trustees Aktipis, Caleel, Korin and Zannis. Nays: 0 - None. Abstain: 1 - Trustee Yusuf. Motion carried. Mr. Figliulo explained that he would prepare a brief letter that sets out his understanding of the scope of the assignment and he would appreciate it if there was a person designated, on behalf of the Village Board that could be the Village Manager who he could communicate with respect of organizing material and handling it as efficiently as possible. Chairman Aktipis asked if there would be any objection that the Village Manager would be the contact point. Trustee Zannis indicated that she did not want the Manager in the middle of a dispute as it has been difficult enough for him and she does not want to burden him. Chairman Aktipis asked who she would suggest. Trustee Caleel suggested that Trustee Aktipis be that person and the Board of Trustees concurred with this request. Trustee Caleel recommended that the Village Manager also be included. Chairman Aktipis stated that Manager Boehm will be kept informed by him of the proceedings. He then asked if there was anything further. Mr. Figliulo indicated he had nothing further as again he will VILLAGE OF OAK BROOK Minutes Page 6 of 12 March 2, 2005 4. A. prepare a letter to be sent to Trustee Aktipis to distribute to whomever will be incorporated into whatever file or motion the Board has in this matter. Then he will try to identify the public material by talking with Trustee Aktipis that he believes will be most relevant and have a copy made for him and within a week or ten days to at least have a preliminary discussion of what he thinks are the issues, if there is other material that he needs to review to please have it given to him if confidentiality issues have been determined. Trustee Zannis asked when Mr. Figliulo anticipates the Board would receive the contract. Mr. Figliulo commented that the contract will be forwarded tomorrow. Motion by Trustee Zannis, seconded by Trustee Korin, to direct the Village Manager to sign, execute and return the contract by the end of the week to Mr. Figliulo. Trustee Korin asked if that would include Mr. Figliulo's description. Mr. Figliulo explained that the letter will be a couple of paragraphs and he will attach the minutes from the February meeting which he understands sets out the general scope of the issues and then they will move forward as discussed generally. Chairman Aktipis stated that a motion has been made and seconded, is there any discussion. Village Manager Boehm asked for a clarification if it also includes the fee. Trustee Zannis stated that it did include the fee. Manager Boehm asked if the budget was going to be amended to include the $15,000. Trustee Zannis stated however litigation fees have been handled to date. Manager Boehm indicated that it would be taken out of the normal legal litigation. Mr. Figliulo stated it was his understanding that this would be an investigation and consulting assignment. Chairman Atkipis suggested that this should be under a different budget. Manager Boehm explained there are other line items but not under legal. Trustee Korin recommended the Board's Contingency Fund as the Board concurred with this recommendation. Chairman Aktipis asked for a roll call vote on the motion. ROLL CALL VOTE: Ayes: 4 - Trustees Aktipis, Caleel, Korin and Zannis. Nays: 0 - None. Abstain: 1 - Trustee Yusuf. Motion carried. VILLAGE OF OAK BROOK Minutes Page 7 of 12 March 2, 2005 4. A. Trustee Yusuf stated once again for the reasons stated previously he would abstain. Chairman Aktipis stated the Board appreciated Mr. Figliulo's involvement and spending this evening explaining the manner in which he would undertake the services and he would look forward to hearing from him tomorrow. B. Clarification of Previous Motions Creating and Authorizing the Work of the Ad Hoc Audit Committee Trustee Korin stated that the original motion creating the Ad Hoc Audit Committee was unanimously passed on September 14, 2004 in which part of that motion provided that the Committee submits its report to the Village Board within thirty (30) days. Due to numerous obstacles including not receiving invoices to be reviewed until mid - November of 2004, the Committee was unable to submit its report to the Board within the thirty (30) day time frame. Also the original motion creating the Ad Hoc Audit Committee was unanimously amended on January 17, 2005 to provide the Committee with broader latitude to report on issues that came to light during its review. The amendment to the original motion was made in part because discussion by Board members, statements by Village President Quinlan and Attorney Kubiesa that the appointment by Mr. Kubiesa and his firm would be budget neutral, to determine if the appointment of Mr. Kubiesa was budget neutral the Committee must compare Mr. Kubiesa's legal fees to those incurred by the Village's previous attorney. Finally, because the Committee must analyze billings from the current attorney and the prior counsel to determine budget neutrality, the Committee may gain insight into another matter as well. The current Village Attorney is a member of a firm while our prior counsel was an in -house part- time attorney. The Committee may also report whether the Village obtained a greater benefit to hiring a firm on an hourly basis as opposed to having an in- house part-time attorney. Motion by Trustee Korin, seconded by Trustee Aktipis, to clarify the previous motions creating and authorizing the work of the Ad Hoc Audit Committee by granting additional time in which to submit its report, up to and including March 22, 2005; and be authorized to compare the legal fees of the current attorney and the prior attorney to report on whether the appointment of the current attorney and his firm was indeed "budget neutral" and whether retaining an attorney in a firm provides a greater benefit to the Village of Oak Brook as opposed to hiring an in -house part-time attorney. Trustee Caleel asked if Trustee Korin was asking for additional time. Trustee Korin explained that yes she was asking for additional time and that the Board VILLAGE OF OAK BROOK Minutes Page 8 of 12 March 2, 2005 4. B. probably knows that the issue of indemnification arose with the Committee members. The clarification pointed out here was recommended by the attorneys according to the Committee by IRMA. The points further clarify the report. The Committee does have scheduled an Ad Hoc Audit Committee meeting tomorrow evening to approve minutes and to ratify the report. The Board of Trustees should receive the report on Friday and therefore the motions that were previously asked to be placed on the Tuesday Board meeting can be discussed and make any motions the Board chooses to at that time. Trustee Yusuf stated it appears that the scope of what the Committee is doing is more than the Board originally planned. Trustee Korin explained that this is part of the discussion and comparisons that started on day one and the Committee received a legal opinion that it is a good idea to put it out there and state that is what the report will contain. Trustee Yusuf indicated that it seems that Trustee Korin is asking the Committee to make some decisions that the Board of Trustees should be making as to whether the Village has an in -house part-time attorney. Trustee Korin stated the Committee is not making any decisions. They will present the Board with a report of information, analysis and recommendations. The Board may then choose to take those recommendations or ignore them. It is up to the Board as to what they want to do with that information and if the Board feels it would be best to change our Village Code, ordinances, policies or practices. Trustee Yusuf stated he understood that the final decision is the Village Board's but when this was started, he thought it was to review the fees and determine if there were any discrepancies, irregularities or anything out of the ordinary happening. He looks forward to seeing the results and reviewing the recommendations. He would not want to take anything away from the Board's independent role of coming to their own decision on what direction the Board should be heading from now on. Trustee Korin reiterated that the report has recommendations and the Board could choose to adopt them, change or ignore them. There was a lot of time put into analyzing the information and the Board was under the impression that bringing on the Kubiesa firm would be budget neutral situation and it wasn't as invoices were coming in and the budget was escalating. It was imperative that the Committee review Mr. Kubiesa's firm's fees versus what the Village has done in previous years as the comparison is included in the report. Trustee Yusuf commended everyone for their work on this project but he stated, in terms of looking forward, the analysis is fine but he is a little uncomfortable with recommendations being made and what form they are being made as he believes it is the Board's decision to take the analysis and information VILLAGE OF OAK BROOK Minutes Page 9 of 12 March 2, 2005 4. B. processed, and make their own decisions. There is nothing precluding him from doing that and assigning an appropriate level of weight to the recommendations. Chairman Aktipis interjected that this is a report presented to the Board of Trustees. It is essentially a sub - committee that has put together the work of analyzing issues that are of interest to the Board. The Board may adopt it or reject it and at that time Trustee Yusuf as a Board member will have full authority to voice his opinion in one way or another. At this point, the Board is merely putting the foundation of getting that report approved. Trustee Yusuf offered that the Board may do that and he does not want to be repetitive as he will save his further comments until after the report is presented. Trustee Caleel stated the Board is just going to receive the report whether the Board accepts it or not as that comes at a later time. Trustee Korin again reiterated that the expectation is that the report will be ratified by the Committee tomorrow evening, placed in the Board's packet on Friday and then on Tuesday there would be a motion to adopt the report. By adopting the report, it does not mean that the Board is enacting every single recommendation. Those recommendations would have to be enacted separately item by item. Trustee Caleel called for the question. Chairman Aktipis asked for a roll call vote on the motion. ROLL CALL VOTE: Ayes: 4 - Trustees Aktipis, Caleel, Korin and Zannis. Nays: 0 - None. Abstain: 1 - Trustee Yusuf. Motion carried. Trustee Yusuf stated once again for the reasons stated previously he would abstain. 5. NEW BUSINESS: A. A Motion Directing the Village Attorney to Recuse Himself from any Further Issues Concerning Matters He or His Law Firm Have an Interest Trustee Korin read that the Village Attorney failed to comply with the direction of the Board that came from the last Board meeting of February 22, 2005 in creating an ordinance by the date of February 28, 2005 authorizing the engagement of an investigator. Also the Village Attorney has provided no justification for his failure to meet the direction of the Village Board. The Village Attorney was directed to prepare an ordinance that would have VILLAGE OF OAK BROOK Minutes Page 10 of 12 March 2, 2005 5. A. subjected the Village Attorney and his firm to an investigation concerning his performance, professionally and ethically and that the Village Attorney did not do so despite the Village Board's direction. Motion by Trustee Korin, seconded by Trustee Zannis, that the Village Attorney refrain in the future from providing advice or opinions to the Board or any member of the Board concerning any matters in which the Village Attorney or his law firm have an interest including but not limited to the contract with the investigator. Trustee Caleel asked for a clarification. It reads that the motion directing the Village Attorney to recuse him from any further issues concerning matters he or his law firm have an interest. If he has an interest, he must recuse himself rather than give the Village Board an opinion that favors his position. Chairman Aktipis stated he wanted to make certain that this is offered as an oral motion and that the Village Clerk is directed to really make a transcript of that in terms of reviewing the recordings of the meetings. Trustee Yusuf stated he had no objection to that motion other than the fact that once again he must abstain this evening. If this matter were presented Tuesday at the Board meeting, in all likelihood he would be in favor of it. Chairman Aktipis stated a motion has been made and seconded. If no further discussion, he asked the Clerk for a roll call vote. ROLL CALL VOTE: Ayes: 4 - Trustees Aktipis, Caleel, Korin and Zannis. Nays: 0 - None. Abstain: 1 - Trustee Yusuf. Motion carried. Trustee Yusuf stated once again for the reasons stated previously of the legality of the meeting he would abstain. B. Motion to Direct James De Ano in Consultation with the Village Manager to Conduct an Investigation Chairman Aktipis stated the motion to direct James De Ano will not be presented at the meeting. In the absence of any other item on the agenda, Chairman Aktipis asked for a motion to adjourn. 6. ADJOURNMENT: Motion by Trustee Caleel, seconded by Trustee Zannis, to adjourn the special VILLAGE OF OAK BROOK Minutes Page 11 of 12 March 2, 2005 6. meeting at 8:15 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 March 2, 2005