McHenry Co. (ECWd) -
This is complicated so please make sure you read the articles linked and documents linked in those articles in order to follow why Bob Miller owes the Township Road District $47,381.84, and we believe at some point either the circuit court or appellate court will confirm such a position.
In light of information recently obtained, it is clear to us that the State's Attorney should be taking steps to recover these funds as allegedly stolen funds from the Road District.
January 11th, 2018, we wrote this article. pointing out conflicts in sworn documents signed by Bob Miller, former Road District Commissioner in Algonquin Township. Of great interest in that article, now that we have yet another piece of the puzzle, is this statement by Miller's attorney.
“Only because of unfamiliarity with the township code and the records of Algonquin Township the highway commissioner presently fails to understand that the liability he speaks of was a liability of the township for sick pay as the road district had never paid the highway commissioner’s salary or sick days, there is no reason such a liability would be listed in the annual report.”
We questioned Miller's position in that article, and now have solid proof that points to a really big problem for Miller and his court filings.
March 22, 2017, well in advance of any claim of sick pay being owed, Miller was informed by his then legal counsel James Kelly that any sick pay owed is an obligation of the Road District. So to create an excuse that the sick pay liability was not listed on the annual report because he thought it was a Township obligation, clearly does not hold water. He was advised by his attorney that it was an obligation of the Road District.
Of interest to us in what will become the famous James Kelly legal opinion, is the fact there is no legal opinion provided, only his personal opinion. No legal citations, no case law, nothing! We will dive into the sick pay laws in future articles but for now, just know, these folks have bigger problems coming their way to include possible tax evasion. When you read the letter we are confident you will see that point.
What we know, which so too should a Grand Jury:
- Sworn Road District Annual Report makes no mention of any sick pay liability. (nor do the previous 23 years worth of reports)
- Bookkeeper notes to the auditor reporting no liability owed to the Road District
- Official audit records prior to March 2017 do not reflect any sick pay liability!
- Annual Financial Report for 2017 with the Comptroller makes no mention of any long-term liability for sick days.
- Miller is informed March 22nd, 2017, by his attorney, the sick pay is an obligation of the Road District.
- Miller submits questionable documents for sick pay to the Township Board and a check is cut for $47,381.84 from the Road & Bridge fund.
- Board approves sick pay even though there was no agenda item for action to be taken on sick pay for anyone.
- Miller gets sued for taking the sick pay money from the Road District.
- Once all the irregularities are exposed, Miller and his lawyer create a story that it was not listed in the Annual report as a liability because he thought it was a township obligation, which contradicts what his own attorney told him in March of 2017.
- After identifying all the mistakes in the court filings, affidavits, audits, Comptroller AFR's and sworn annual reports we wrote this story.
- Miller's attorney(Gooch), amends his filing after that exposure, which now proves, Miller owes the sick pay to the Road District and he can thank not only the law but his own attorney!
“First, Defendant alleged that the sick pay raised in Plaintiffs Response was paid from the general town fund. Defendant should have alleged that the sick pay owed Defendant was a liability of the general town and erroneously paid through the road and bridge fund at the time of payment, for sick days earned when MILLER was not an elected official but was an employee.”
Judicial estoppel is what comes to mind. Judicial estoppel precludes a party from taking a position in a case that is contrary to a position it has taken in earlier legal proceedings.
Now that Miller has taken the position the obligation is that of the Township Fund, and admitted the payment from the Road District was erroneous, it must be paid back to the Road District where it was erroneously taken from according to his own pleading.
In short, Attorney Gooch has confirmed Miller's payment from the Road District was improper. Most people understand when funds are paid erroneously from a public body, they are recoverable, especially when the attorney for the person who was "erroneously" paid confirms it.
And to put the cherry on top, the now filed 2017 Audit is going to prove to be even more problematic in light of prior filings. None of the prior years audits reflected any long-term obligation owed. Don't take my word for it. We challenge you to find any sick pay obligation in the 2015, 2016 audits.
Since there were no accrued sick days in any of the previous audits we wonder how on earth in one year a $47,381.84 obligation just appears? Does this point to bogus audits in the previous years?
Why does this claimed liability not show up on the Annual Financial Report to the Comptroller in the 2017 filing? It should have been a liability shown in the audit but the Comptroller filing does not show that.
We challenge the auditor to produce ALL documentation that supports a sick day obligation of over $47,000.
How many are familiar with the term Constructive Fraud?
Black's law dictionary defines constructive fraud as "all acts, omissions, and concealments involving breach of equitable or legal duty, trust or confidence, and resulting in damage to another, 38 Cal Rptr. 148, 157; i.e. no scienter is required. Thus the party who makes the misrepresentation need not know that it is false.'"
Considering all the problems identified with Miller's sick pay, I think the prosecutor had better take a very close look at the facts and follow the paper trail, which appears to point to constructive fraud at a minimum. I suspect presenting this evidence to the Grand Jury would resolve any questions on whether to prosecute or not.
That old saying that even a blind squirrel can find a nut would apply to this situation. Any prosecutor should be able to present these facts to the Grand Jury and get an indictment in our opinion. Any person sitting on the Grand Jury could demand this information be presented but in order for that to happen, they must first know they have such powers.
The big question now, will the McHenry County State's Attorney take on a case like this and help build the public's trust in their local government or will he ignore it? Will he present these facts to the very people that would issue a true bill for indictment?
Time will tell.