CARY – McHenry County State’s Attorney Patrick Kenneally decided not to pursue claims that Cary Mayor Mark Kownick and Trustee Ellen McAlpine violated a state law regarding conflicts of interest.
However, Kenneally pointedly disagreed with a village attorney’s reading of the statute and warned that his office may not show similar restraint if future allegations are made, according to a Nov. 14 letter obtained by the Northwest Herald.
“In its discretion, [the McHenry County State’s Attorney’s Office] has elected not to pursue this matter further,” Kenneally said.
On Friday, Kenneally said his decision was based on the fact that Kownick and McAlpine sought legal advice from Cary’s village attorney. He said it appeared they acted in good faith and did not intend to violate the statute. He said his office would have to prove they acted with an unlawful intent.
Additionally, Kenneally said attorneys can disagree on an interpretation of a statute, as he and the village’s attorney did. This echoes statements made by the Cary village attorney in a Dec. 19 Committee of the Whole meeting.
Kenneally donated $200 to Kownick’s election campaign Feb. 22. Kenneally said the donation had no influence on his decision in the matter.
Tempers flared in the Dec. 19 meeting as Trustee Jim Cosler highlighted what he believed to be violations of the Illinois Public Officer Prohibitive Activities Act by McAlpine in May 2016 and in June, and by Kownick in June.
In each instance, the Cary Village Board was voting to provide grant funding to the nonprofit Cary-Grove Chamber of Commerce, of which McAlpine and Kownick are both members, for its annual Main Street Fest.
McAlpine is on the Cary-Grove Chamber of Commerce Board of Directors in her capacity as a sales manager for Envoy Mortgage, while Kownick is an ex-officio director, by virtue of holding the mayor’s office in Cary, according to the chamber website.
Cosler’s allegations are based on paragraph (f) an Illinois statute that states:
“If the municipal or county officer is not appointed to the governing body of a not-for-profit corporation by the governing body of the municipality or county, then the municipal or county officer may continue to serve; however, the municipal or county officer shall abstain from voting on any proposition before the municipal or county governing body directly involving the not-for-profit corporation and, for those matters, shall not be counted as present for the purposes of a quorum of the municipal or county governing body.”
Cosler delivered a letter in October to the McHenry County State’s Attorney’s Office, Illinois State Police and the McHenry County Sheriff’s Office, detailing what he says are violations of state law.
In May 2016, McAlpine voted “yes” to grant the Chamber $10,000, according to meeting minutes. In June, she voted “yes” to grant the chamber $8,000. Kownick, who voted in a tiebreaker, also voted “yes” to provide the funding.
During that June meeting, Trustees Jennifer Weinhammer and Kim Covelli both wanted to deny funding because the village was facing a budget deficit in the coming fiscal year, village documents show.
Weinhammer joined Cosler in expressing concerns about a potential conflict of interest for McAlpine, who said in that meeting she is a volunteer for the Chamber board and pays the same membership fees as other chamber members, according to meeting minutes. McAlpine said that she has no financial interest in the Chamber and would not recuse herself from the vote, according to the meeting minutes.
On a previous vote regarding the Chamber, she abstained. On June 16, 2015, McAlpine recused herself from Village Board discussion and voting on whether to grant $20,000 to the Chamber, according to meeting minutes, stating she was a voting member on the Chamber board.
McAlpine did not return a call Friday seeking comment.
Now Cosler, Weinhammer and Covelli do not want to pay a $2,900 bill from Ancel Glink, the village’s law firm, for what they say was bad legal advice. The fees were incurred for work Village Attorney Julie Tappendorf did in July, August, September and November regarding the matter.
Kenneally, in a letter to Tappendorf, said the two sides “respectfully disagree” on interpretation of the statute. Tappendorf has advised the village there isn’t a conflict of interest “if the Village Board member has no financial interest or receives no financial benefit from the chamber,” according to village documents.
In Kenneally’s letter, he tells Tappendorf the case law she cited in her correspondence with his office is inapplicable because the cases occurred before legislators enacted paragraph (f) in 2009.
But Kenneally chose to offer “no opinion as to whether the actions on the part of any Cary trustees related to the resolution funding the Cary-Grove Chamber of Commerce contravened” the statute.
“In its discretion, [the state’s attorney’s office] has elected not to pursue this matter further,” Kenneally wrote. “That said, should we be advised of future allegations of violations of section 105/3 by any Cary Trustee, we may not exhibit similar restraint.”
As for the $2,900 bill, Village Administrator Jake Rife noted to trustees in the Dec. 19 meeting that payment for professional services needs to be made. When looking at the list of village bills, village staff assesses whether they are legitimate expenses.
“Is it a legitimate expense? Was the work done? In this case, it is a professional service. The work was done. I understand you don’t agree with it here,” Rife told Cosler.
Cosler asked to have the Village Board consider sending a request to Ancel Glink asking the firm to consider refunding the legal fees associated with the matter.
It’s expected to be up for a formal vote at the Village Board’s next meeting Jan. 16, but the board took a straw poll Dec. 19. Cosler, Covelli and Weinhammer are against payment. Kownick, McAlpine and Trustees Christine Betz and Jeff Kraus said the firm should be paid.
Cosler said he didn’t want to make it a public issue, but was “forced” because Ancel Glink “is not willing to work with us, in my understanding, on solving this issue.”
“I cannot sit here as a trustee and approve billing for advice that was legally incorrect,” Cosler said.
Kownick said Thursday it is not worth the time to keep bringing up the issue, saying it’s a waste of board time, staff time and the state’s attorney’s time.
“We have to move forward on a positive note,” Kownick said. “We have much bigger things we need to worry about.”
According to village documents, village staff has recommended that Village Board members serving on the Chamber board abstain in the future from voting on Chamber matters being considered by the Village Board.