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HomeMy WebLinkAboutMinutes - 12/11/2012 - Board of Trustees (2) MINUTES OF THE DECEMBER 11, 2012 REGULAR CLOSED MEETING OF THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF OAK BROOK APPROVED AS WRITTEN ON MARCH 26, 2013. 1. CALL TO ORDER The Closed Meeting of December 11, 2012 of the Village Board of Trustees was called to order by President Gopal G. Lalmalani in the Upper Level Conference Room of the Butler Government Center at 9:51 p.m. 2. ROLL CALL: The Village Clerk Charlotte Pruss called the roll with the following persons PRESENT: President Gopal G. Lalmalani, Trustee Stelios Aktipis, Trustee Michael Manzo, Trustee Mark Moy, Trustee Gerald Wolin, Trustee Asif Yusuf, Trustee Elaine Zannis ABSENT: None IN ATTENDANCE: Village Manager Dave Niemeyer, Village Attorney Peter Friedman, Assistant Village Manager Blaine Wing, Assistant Village Attorney Ben Schuster, Police Chief James Kruger 3. TO DISCUSS COLLECTIVE NEGOTIATING MATTERS, PURSUANT TO SECTION 2C(2) OF THE ILLINOIS OPEN MEETINGS ACT, RESPECTIVELY A. Update on Negotiations with Both Fire Union (IAFF) and Public Works Union (Local 150) Assistant Village Manager Wing explained that a lot of progress had been made in the Fire Union negotiations and the non-economic items have been discussed and then they would be going on to the economic items. He stated that there are about five topics left to discuss and that he has a goal of wrapping this contract up in the next six months. He discussed that right now the Union is looking for a longer contract and that he is asking for authority up to 2.5% for 2013, 2014 and 2015 and up to 2% for 2016, but continuing to increase the health insurance component. Assistant Village Manager Wing stated that he has had verbal discussions with the Public Works Union and through e-mail the first round of proposals have been exchanged and he discussed that this contract might be able to be wrapped up by the end of the year, which would save the Village $30,000 which has been set aside for negotiations. He discussed that the attorney would just need to review the final document and that potentially in January, he might be bringing forward a final document for the Board to approve. He stated that the Public Works Union is also seeking an additional year, so he is seeking the same type of authority as the Fire Union. He reiterated that he hopes to have a contract with Public Works in the next ninety days and with Fire in the next six months. 4. TO DISCUSS THE COMPENSATION, DISCIPLINE, PERFORMANCE, OR DISMISSAL OF SPECIFIC EMPLOYEES OF THE PUBLIC BODY, PURSUANT TO SECTION 2(C)1 OF THE ILLINOIS OPEN MEETINGS ACT, RESPECTIVELY A. Manager’s Evaluation Trustee Wolin discussed that Village Manager Niemeyer should stay for at least the general discussion of the evaluation process. Assistant Village Manager Wing and Police Chief Kruger briefly exited the meeting at approximately 10:00 p.m. Trustee Wolin explained that Village Manager Niemeyer was provided with copies of manager Village of Oak Brook Regular Closed Meeting Minutes Page 1 of 7 December 11, 2012 evaluations from comparable communities and that he (Trustee Wolin) had prepared a first draft of an evaluation form with input from Trustee Yusuf. Trustee Wolin stated that once an agreement is reached, the back page, weightings, should be done at the beginning of the year, using an average. He discussed that there would be objectives at the start of the year and at the end of year, and that two people could be appointed to handle the actual appraisal. He added that Village Manager Niemeyer would go through each step and add his comments. Trustee Wolin discussed particulars of the evaluation form and rating system and that each Trustee would be able to add comments and the Board would hopefully come together with an overall assessment. Trustee Wolin expressed that with the case of the Village Manager there are so many bosses that it is a bit more complicated than a typical six-month employee review. He added that for each area a rating would be given on a scale of one through five, one being unacceptable, five being outstanding, with comments put down on why the rater thinks it is so. He stated that at the very end, the ratings would be averaged out, then the ratings weighted and stated that the weightings would be higher on critical items. Village Manager Niemeyer expressed his concerns about certain sections such as the elimination of the Sports Core subsidy and creating a capital improvement fund for the Bath and Tennis Clubhouse (B&T). He discussed that he wanted to make sure that there is a consensus on both of those issues, particularly the issue of the subsidy and the goals, with perhaps working with the liaisons on the objectives on how to reach the goals. He discussed that the dramatic cut made a couple years ago and what members of the B&T are charged has affected its profits. He stated that areas he believes are within staff control, such as growing the membership and increasing open space revenues, have increased, but unfortunately have not affected the numbers because of three things: 1) golf revenues not being where they were at five years ago; 2) the Calihan decision putting the Village in the hole; and 3) discontinuance of the loan subsidy from the general fund to the B&T. He expressed that he would like to see more improvements on the Clubhouse and discussed defining the goals and ways to achieve them without excess revenue and that there are no funds to put aside for capital improvement. Village Manager Niemeyer summarized that this is a good goal, but more discussion and direction would help him in terms of where to go with it. Trustee Wolin suggested meeting with liaisons over the next several weeks to discuss and flesh out the objectives for the overall goals. Trustee Zannis clarified that the Sports Core subsidy was not considered to be part of the debt issue. Lengthy discussion ensued regarding the Sports Core area in the evaluation form and Trustee Moy stated that it does not really apply in evaluating the Village Manager, because it is in the Board’s control. Village Manager Niemeyer reiterated that he really needs specific direction and expressed that perhaps the objective would be to improve the financial health of the Sports Core. Trustees Wolin and Zannis suggested changing the wording of that particular goal to create a plan for improving the financial health and services of the Sports Core. Trustee Zannis stated that even if the plan is not approved by the Board, the Village Manager has still gone through the exercise of creating it. Trustee Moy reiterated that this specific item, while an important goal, does not fit with the rest of the objectives on the evaluation form. Trustee Aktipis stated that because this has been a perennial problem for the Village, the Board is looking for Village Manager Niemeyer to come up with something. Trustee Yusuf suggested not using the phrase ‘younger families’ and instead ‘new families’ in the pertinent section. Village Manager Niemeyer suggested putting the Sports Core item under the Financial Management section and Trustee Wolin agreed to list it there as a bullet item to create and implement a plan to improve the financial health of the Sports Core. Regarding the high level of customer service, Trustee Zannis suggested placing that Sports Core item under Leadership. There was discussion regarding needed updates to the B&T. Village Manager Niemeyer then discussed the wording of “Implement a Strong Economic Development Program” on the evaluation form and stated that as part of his duties he works with and oversees the Chamber’s portion of the Economic Development Program, and works with businesses. He stated that this item on the form does not reflect the relationship with the Chamber and the business community, which is often 10% to 20% of his job some weeks. He discussed that the other aspect not mentioned on the form concerns moving forward projects of the Commercial Revitalization Committee, for example. Trustee Wolin agreed to meet with Village Manager Niemeyer to work on some bullet points. Discussion ensued regarding utilizing this form for 2012, for identifying strengths and weaknesses, and then going Village of Oak Brook Regular Closed Meeting Minutes Page 2 of 7 December 11, 2012 forward for an evaluation of the 2013 goals and objectives. A short recess occurred after this discussion. Assistant Village Wing and Police Chief Kruger re-entered the meeting at 10:30 p.m. 5. TO DISCUSS INFORMANT SOURCES, THE HIRING OR ASSIGNMENT OF UNDERCOVER PERSONNEL OR EQUIPMENT, OR ONGOING, PRIOR OR FUTURE CRIMINAL INVESTIGATIONS, WHEN DISCUSSED BY A PUBLIC BODY WITH CRIMINAL INVESTIGATORY RESPONSIBILITIES, AND TO DISCUSS THE COMPENSATION, DISCIPLINE, PERFORMANCE, OR DISMISSAL OF SPECIFIC EMPLOYEES OF THE PUBLIC BODY, PURSUANT TO SECTIONS 2(C)(1) AND 2(C)(14) OF THE ILLINOIS OPEN MEETINGS ACT, RESPECTIVELY. A. Recent Police Investigation Village Manager Niemeyer explained that a couple weeks ago a voice mail was received and he stated that the caller made some allegations against Trustee Aktipis. Mr. Niemeyer stated that these allegations lead to a police investigation (which has since been closed) and that a police report was developed. He stated that the major purpose for this discussion is because Trustee Aktipis had wanted to address the Board on this matter. Mr. Niemeyer stated that Attorney Xinos for Trustee Aktipis had submitted a FOIA request and a number of the records were provided to Attorney Xinos. Mr. Niemeyer explained that, per typical practice, personal names and things having to do with privacy were redacted from the records provided, but that Trustee Aktipis has some concerns because there were a lot of redactions and believes that this does not give him much to go on in terms of what the charges were against him. Mr. Niemeyer stated that Trustee Aktipis would like to ask the Board to get a clean copy. Mr. Niemeyer explained that although the FOIA response was a discretionary decision, this is the way that FOIA requests like this are consistently handled. He added that the Board certainly has the right to provide a clean copy to Trustee Aktipis, but that going forward it certainly would affect how things are handled in the future. He reminded the Board of the law which allows FOIA requestors to appeal to Attorney General Madigan’s office regarding any decisions on FOIAs, and, undoubtedly, if the procedure is changed even once it could affect future redacted documents. Very lengthy discussion ensued. Trustee Aktipis stated that he wants an unredacted copy of the police report and added that he knows what the woman’s allegations were because he has received some information indirectly from the Consulate in Cancun where they cleared him of all of her allegations. In answer to an inquiry, Village Attorney Friedman replied that there are two sets of information that FOIA deals with, private and personal, and he discussed that private information pertains to personal identifiers – social security numbers, addresses, phone numbers, e-mail addresses – and stated that this information is always redacted. Village Attorney Friedman stated that in this situation it is hard to split the information because the individual who filed the complaint has information which is personal to them and explained that it has always been the position that each FOIA request is decided independently of other FOIA requests, and that the statute is permissive in that it does not require the Village to redact, but that the statute authorizes the Village to redact. He stated that he believes that in this situation the redactions fell right down the middle, in that no arrests resulted and that it falls within the category of domestic dispute, which any local government would perceive as a highly personal matter. He further stated that in view of no arrests and fact-finding, it would be viewed as personal, but that in some municipalities, it would be viewed the other way, and that the Attorney General has very generally acknowledged that this is a type of personal information and the invasion of personal privacy, but where that line of how much is redacted there is no clear guidance. Village Attorney Friedman discussed that the Village generally redacts the specific information dealing with the interaction between the two individuals and does not redact the more factual information about the questions asked by the police or contained in the narrative of the police report. He stated that if the FOIA Officer (Blaine Wing) and the Board decide to release to Trustee Aktipis, in regard to the police narrative, the private Village of Oak Brook Regular Closed Meeting Minutes Page 3 of 7 December 11, 2012 information would still be redacted, names, addresses, etc., but the narrative would not be redacted. He explained that if the Village received a FOIA request a week later for the same information, the same police report, it is not a legally binding precedent and the Village can redact firmly on that one, but he stated that the risk is that if the second requestor knows an unredacted version was previously released and challenges it to the PAC, it makes it difficult to justify the redactions on the second requestor. He stated that the statute does not say that the same exact information always has to be redacted, it just makes it a bad argument, but not a legally binding precedent. He compared it a court issue where the Village would be bound, but that it is not the same with regard to FOIA. In response to an inquiry from President Lalmalani, Chief Kruger discussed that normally the redactions are usually for safety reasons and that any time there is a dispute with that, it goes to the PAC to see if the Attorney General turns it over. He stated that he has never ever seen where it goes to the elected body when it comes to that nature. Assistant Village Manager Blaine Wing stated that Chief Kruger has the original of the police report and Chief Kruger stated that he also has the transcript of the phone message. In response to Trustee Zannis’ question about whether it is true that the woman recanted her story, Chief Kruger replied that she recanted portions. Trustee Aktipis stated that he needs the document in his hands as to what he was accused of because he might need that in order to take appropriate legal action and that sitting here and listening would not provide him with what he is requesting. He further stated that he is requesting a record where her allegations are stated so that he has the opportunity to clear his name. President Lalmalani requested that Chief Kruger read the report out loud, but Trustee Aktipis reiterated that this is not what he wants, that he wants a document and that he knows what her allegations were because he has received som e information indirectly from the Consulate in Cancun where they cleared him of all of her allegations. He stated that he could make another FOIA request to receive an unredacted document. Trustee Manzo discussed that if an unredacted document goes out to one, it goes out to all and that he does not want to be part of a Village that does that kind of stuff, legal or not legal, one version to one person and another version to another person. Trustee Aktipis stated that his status is very different because he is the one the allegations were made against. Trustee Manzo stated that they are all elected officials and Trustee Aktipis replied that it does not make any difference. Trustee Aktipis stated that Trustee Manzo and President Lalmalani are treating this as a political issue instead of a private issue and therefore Trustee Aktipis wants to use proof that the allegations are without foundation in three jurisdictions. He stated that because this may be used as a political lever, he needs to get the information as quickly as possible so he can clear his name. Trustee Yusuf discussed that if the State’s Attorney asked for it he assumes that the Village would turn it over in a very timely manner. Trustee Aktipis replied that the State’s Attorney has already received the information, but he believes in order for him to take the appropriate action, he needs to have it in his hands. Trustee Zannis referred to Trustee Manzo’s comment about using information like this against someone publicly and stated that she did not know anyone on this Board who would do this to any of their peers. Trustee Manzo stated that they are all elected officials and Trustee Aktipis replied that it does not make any difference. President Lalmalani inquired as to whether providing an unredacted document would be done for any ordinary resident or is it something special being done here. Village Attorney Friedman stated that the PAC has not definitively ruled on this and there is a lot of gray area out there, but he stated that it is different when the person requesting is the subject, as opposed to just someone on the street asking for every police report over the last month. He explained that the interest in giving them an unredacted document is different than for the person against whom the allegations were made, but reiterated that the statute is silent on this and there is no definitive answer. He discussed that with a domestic dispute the personal nature of it is intertwined with what one person wants and is personal to the other person who has filed the complaint. Trustee Zannis commented that the phone calls that she made, that she targeted certain people to contact, that they were politically motivated decisions, that she did not call all of the Board. President Lalmalani inquired if Trustee Zannis received an e-mail and she replied that she received a very convoluted text message, but nothing inflammatory, nothing alluded to and she thought they were having a great time. Trustee Zannis stated that for President Lalmalani to get a very different message from the same person from what she did, she finds that surprising, Village of Oak Brook Regular Closed Meeting Minutes Page 4 of 7 December 11, 2012 and for Trustee Manzo to get one and for Trustee Wolin not to get one, people were targeted and she has to question her motivation. Village Attorney Friedman stated that they are never going to provide a completely unredacted version, that the only thing they are talking about is an “unredacted” version of the narrative with the names blacked out, but so the allegations are known. He discussed that if another request was received for the same document from a third party, legally he would not have an objection to redacting it like they have always redacted it, but if the second requestor knew that the Village provided an unredacted version that would be part of their challenge to the redactions. Trustee Zannis stated that she has no problem with having this conversation in open if it needs to be done, and stated that she has no problem with giving him the unredacted narrative or a moderately redacted narrative. She went on to say that she has no problem with doing this, but that the hurdle is different because any other resident would not be able to say that this is political and any other resident would not be calling the Village President and ask what’s going on and the Village Manager would never have issued an e-mail that referred to this unless he was a political figure. She discussed that the rules about him are different, that he was written about, calls were received about him and that would have been a little more prudent. She went on to say that when an e-blast is forwarded and then it is manipulated and people start calling that is no longer an ordinary person. She further stated that when The Doings called Chief Kruger, and she stated that she does not believe this was done with malice, he could have spoken to them instead of issuing a press release to them, which was then copied to the Board and then forwarded throughout the neighborhoods. She added that the rules cannot be applied for everyone selectively, that was not selectively. President Lalmalani requested that the Trustees who had not spoken, do so at this time. Trustee Manzo suggested going into open session and said that they were doing it behind closed doors and Village Attorney Friedman stated that this was a Board decision. Trustee Zannis inquired of Village Attorney Friedman as to the risk and down side of providing the narrative with the names blacked out to the two parties involved. Village Attorney Friedman explained that the down side is if a third party asked for it, there is no good argument for not releasing it to them and that they have redacted these documents pursuant to the best legal analysis as to what is allowed under the statute. Trustee Zannis rephrased her question and inquired what the risk is in allowing semi-redacted notes, comments and to forget the third party. Village Attorney Friedman stated that this is not the situation here, that it is assumed that the other party is not agreeing to this release. Assistant Village Attorney Schuster discussed that in domestic disputes, it is not known what each party knows, so a judgment call has to be made and it is difficult because one of the parties involved in the dispute talks to the police and shares information which the other person may or may not know what that information is and by not redacting the document the person may learn personal information about the other. He further stated that when the FOIA Officer reviews a police report he does not necessarily know what each of the parties know, so it is tough because by giving it out to one of the two parties, a judgment is made with imperfect information. Trustee Moy inquired of Village Attorney Friedman that if another submission is requested, which does not redact the narrative, does the Board need a full vote or is a consensus sufficient. Village Attorney Friedman explained that what Trustee Aktipis had said was that he would file a new FOIA request and the response to that FOIA request is when the document would be given. As to the decision, Village Attorney Friedm an stated that it used to be that under FOIA the FOIA Officer would make a decision and then the requestor could appeal it to the Village President, but that this no longer exists, rather now the FOIA Officer makes the decision for the Village and then it goes to the Attorney General, if appealed. He went on to say that Trustee Aktipis is looking for a consensus and that Village Attorney Friedman does not believe the FOIA Officer will be comfortable providing a different type of document unless there is a consensus from the Board, not a official decision which is not legally required. Discussion ensued regarding the information released to the press and President Lalmalani stated that the report only stated that it is outside the jurisdiction of the Village of Oak Brook, that it did not say the allegations were wrong or right, which was what was said in the communication to the media without mentioning names. Trustee Aktipis affirmed that this is correct, but that he had forwarded a report from the American Consulate to Chief Kruger which said that there are no charges against Trustee Aktipis because Village of Oak Brook Regular Closed Meeting Minutes Page 5 of 7 December 11, 2012 they simply did not believe this woman. He stated that she filed complaints against him in Mexico and no one pays any attention because they have no basis; then she comes here and President Lalmalani directs it to Chief Kruger and it goes to the District Attorney. He stated that he was cleared in three jurisdictions, but here because there is a political situation, they want to crucify him because they won’t give him the information he needs to clear his name. Trustee Wolin inquired of legal counsel whether it is within the power of the Board to establish a policy, either in closed or open session, that says if somebody is accused of something, that person has a right to know what the allegations are. Village Attorney Friedman replied affirmatively, but that he believes the Board should talk to the Police Chief about whether this is a good policy or not. He discussed the risk of exposure when something is being investigated and people coming forward and wanting them to know that the people they are complaining against are not immediately going to get that information was discussed. Trustee Zannis remarked that the Board betrayed Trustee Aktipis, betrayed a confidence. Trustee Aktipis stated that the questions could have been responded to by saying that presently there are no charges pending against any public official because at that time the investigation had been completed and concluded that there was no basis. He went on to say he understands the political nature of this, but that he needs some fairness in the way he is treated and to be able protect his reputation, which is under questioning in spite of that the allegations are plainly wrong, simply a woman who was angry and simply wanted to destroy his reputation. Trustee Moy stated that there are two issues, the fairness issue and the legal issue, and because he believes what he has heard about the FOIA legal issue, how much to release and how much to redact that it is not rigid so in this case he would lean toward more fairness. He went on to say that if Trustee Aktipis resubmits the FOIA, it is not unreasonable to just redact the names, etc. and he does not believe that this will set a rigid precedent where in the future you would have to release totally unredacted documents because they are case by case. Trustee Yusuf inquired that if Trustee Aktipis resubmits a request and is given a less redacted document, would the less redactions be primarily in the narrative portion and do we have any risk of exposure other than to provide a similar less redacted copy to someone else. Village Attorney Friedman stated that he does not believe there is any other risk of exposure that reaches beyond that. Village Attorney Friedman requested clarification of the consensus issue and stressed that what he said earlier is that he does not believe there is a legal requirement to show to the FOIA Officer a consensus, but that now Trustees have expressed concern about a consensus in closed session and that there is certainly nothing wrong with expressing a consensus in open session. He inquired whether the Board is comfortable with a consensus here, that a vote is not required, but whether the Board wants a vote or not and having the FOIA Officer take what he has heard and making a decision to release a more unredacted version. Trustee Aktipis replied that they are dealing with an issue of time because of having to take legal action against this woman and he needs the proof of her allegations. Trustee Zannis stated that her comment made earlier about writing about Trustee Aktipis is not to be raised as a false allegation, it was her opinion, neither false or true and people may agree or disagree. In response to Trustee Zannis’ question to Chief Kruger whether it is true that the woman recanted her story, he replied that she recanted portions. President Lalmalani inquired as to how many people want to call a meeting to discuss this matter in open session and vote. Trustee Manzo answered affirmatively, Trustee Wolin stated he would prefer open session and Trustees Moy and Yusuf stated that they were ok with open session discussion of this matter. Trustee Aktipis stated that he was then withdrawing his request because he does not wish this to become a matter of public record until he has all of the evidence he needs to answer appropriately and institute legal action. Trustee Wolin stated that as it stands there are four Trustees who have said it is ok to release the information, but need clarification from the four as to whether they are ok with making that decision, doing nothing further and allowing Trustee Aktipis to get the document or make a decision here and announce it in open session or should they wait until there is an open session discussion and then make a vote and which of those is acceptable to the four. Trustee Manzo stated that he is not opposed to a special meeting, but believes it would be a mistake to make the decision here and then comment on it in open session after the fact or make the decision in closed session and not tell the residents about it. Trustee Yusuf stated that he would attend a special Village of Oak Brook Regular Closed Meeting Minutes Page 6 of 7 December 11, 2012 meeting, but does not believe it is that significant of an issue with the level of redactions as long as the Village Attorney believes that the privacy of the other party is in no way compromised and that the same document as redacted will be available to others. Village Attorney Friedman clarified that clearly the privacy of the other party would be compromised and that the previous question by Trustee Yusuf was whether there was a significant risk of liability and Village Attorney Friedman reiterated that he did not think so. He added that this is why it was redacted in the first place because it would be an unwarranted invasion of privacy and it is being requested to be used against her. Clarification of the consensus was discussed and Village Attorney Friedman stated that he does not think the FOIA Officer will be comfortable changing the already-determined redactions without some sense of direction from the Board, but can make the decision without any direction from the Board or can make the decision based on the discussion of the Board in this session. Village Manager Niemeyer repeated that this is really an administrative decision, not a Board decision, but the Board has exacted itself in this decision and the majority are saying that the decision should be changed. Village Manager Niemeyer stated that he was not comfortable with changing the decision without Board approval because it is not the way they typically redact a report, and because of the fact that it does involve a Trustee, the staff has concerns. He added that this why it is being discussed with the Board. Trustee Manzo asked Trustees Moy and Yusuf where they stand on the issue. Trustee Moy inquired regarding the comfort level of the FOIA Officer in regard to changing the process. Assistant Village Manager Wing stated that he is seeking direction to override the typical policy. He stated that if the consensus tonight is for him to get an unredacted copy to provide, then he is ok doing that. More discussion followed and in response to an inquiry, Village Attorney Friedman replied that there is no legal issue of doing this in open session, because it concerns a policy decision which is being veered from. Village Manager Niemeyer stated that he has heard four people who want to change the FOIA decision, so staff has their direction. A majority consensus opinion was expressed by Trustees Zannis, Aktipis, Moy and Yusuf that when a subsequent FOIA request is submitted by Trustee Aktipis for the police narrative report, the FOIA Officer should respond with a less redacted document. President Lalmalani, Trustees Manzo and Wolin opposed this without an Open Session discussion. 6. DISCUSSION OF MINUTES OF MEETINGS LAWFULLY CLOSED UNDER THIS ACT, PURSUANT TO SECTION 2C(21) OF THE ILLINOIS OPEN MEETINGS ACT, RESPECTIVELY A. Approval of Closed Meeting Minutes of November 27, 2012 Village Clerk Pruss inquired as to any issues with these Minutes and none were voiced. Consensus given to present at the next open Board meeting for approval. 7. ADJOURNMENT Motion by Trustee Wolin, seconded by Trustee Manzo, to adjourn the Closed Meeting and Reconvene the Regular Board of Trustees Meeting. VOICE VOTE: Motion carried. The meeting adjourned at 12:15 a.m. ATTEST: _/s/ Charlotte K. Pruss__________________________________ Charlotte K. Pruss Village Clerk Village of Oak Brook Regular Closed Meeting Minutes Page 7 of 7 December 11, 2012