McHenry Co. (ECWd) -
The former Algonquin Township Highway Commissioner Bob Miller was investigated by the McHenry County State's attorney's office for possible Official Misconduct. One of the prongs of that investigation was miscellaneous pay.
According to the investigation records, Miscellaneous pay was $100 per week on-call pay. As far as that pay being a Holiday bonus, the internal document used to explain the pay claims the pattern suggested as much but no documentation had been found yet. The point on documentation is a very important one.
While we are not sure what documentation they may have been looking for, looking at the actual check and dates they were written should not be too hard to determine if the pay was for actual work by comparing it to time cards. Pay that does not match time cards points to payroll fraud.
For those not familiar with public service, it is not legal to provide bonuses unless authorized by law or ordinance. We found nothing in the State's Attorney's final report on that point but rather a citation from the California courts:
With respect to a public employer's provision of benefits to its employees, including bonuses for work already performed, the cases have been fairly uniform in finding that such benefits serve public rather than private purposes. [Authorized bonuses] are ‘necessary to ensure the continued recruitment and retention of qualified and competent state employees.’
While we are not sure why that office would look to a California court case, we do know right here in Illinois the Administrative Code on labor employment is crystal clear, "In order to receive compensation under the Act, the bonus must be earned." The final report from the State's attorney is also crystal clear, most of the employees had no idea what the bonus was for.
"Most of the employees interviewed, upon reviewing the few “miscellaneous pay” awards not associated with “winter shift differential” pay or a special event were often uncertain as to what work they had done to validate the payments."
One would think if the recipient does not know what they did to earn the money and there is no documentation for when actual work was performed, odds are it was a bonus not tied to actual work performed.
On the point of documentation for miscellaneous pay, it is clear there were no records documenting hours worked, job performed, or even the time and dates they were on call for the pay recieved. This should be of great interest as it relates to documentation but appears to have been missed in the investigation.
The final report from the State's Attorney's office points to Article VIII section 1 of our state constitution and specifically points to items (a) and (b). (see page 26). However, an important part of that section of our Constitution is actually the first key to the puzzle and not mentioned in the report.
(c) Reports and records of the obligation, receipt, and use of public funds of the State, units of local government and school districts are public records available for inspection by the public according to law. (Source: Illinois Constitution.)
There are no records or reports on the obligations paid out for miscellaneous pay. So what does that mean? It's actually really simple but commonly overlooked. Section (c) points out that the records related to spending public funds are public records and are to be available for inspection by the public. The implication is they are supposed to have such records. Since they don't have any records on the matter, default to Item (b) of that section, which is a directive that by all indications has been ignored.
(b) The State, units of local government and school districts shall incur obligations for payment or make payments from public funds only as authorized by law or ordinance.
Only as authorized by law or ordinance!
That means the very first step is to identify what law or ordinance in Illinois authorizes the expenditure. In this case, holiday bonus pay, which is what most of the employees called it. Rather than find a law authorizing such an action, the State's Attorney's final report states, "There is no direct prohibition on bonuses for public employees in Illinois".
The law says public funds can only be expended as authorized by law or ordinance. It does not say you can do it as long as you can't find a prohibition.
Most would agree, payments made to people for work not performed, done so without documentation, and with no authorization by law or ordinance points to a violation of Article VIII section 1(a) and (b).
So was this holiday bonus pay? Was it "winter shift differential" or was that a creative name it was given when they realized holiday bonuses are not a legal expenditure of public funds and an investigation was underway?
What did the employees and trustees, past and present, say about these bonuses?
- Danial Wacyk - "He stated it was common knowledge that there would be some extra money in a check before the holidays."
- Brian Doubek - "He stated it has changed several times over the years. He stated it used to be called bonus money, but they now called it winter shift differential. He said no matter what you called it, it was basically a bonus. He stated basically it was a bonus with terminology that made it easier to explain."
- Dylan Stern - "He stated he knew holiday bonuses were illegal but the winter shift differential was not."
- Arnold Sylvester -"Sylvester stated Miller never told him the extra money was a bonus, but it was general knowledge around the Road District that the extra money was given to the employees as a holiday bonus as a thank you for all their hard work throughout the year. As I was leaving he stated again, that the extra money was just a holiday bonus and there was nothing questionable about it."
- Danial Morrison via Rachael Lawrence - "He also said they would receive their holiday bonuses as miscellaneous pay. Lawrence stated Morrison made the following statement, "because I guess it's illegal for them to give us a holiday bonus", so Miller would just throw it to the employees under miscellaneous pay."
- Danial Morrison - "He stated that he believed it was a type of holiday bonus in that it came before the holidays but pointed out he is receiving the same money now. He went on to say there was no reason for any non-labor person to get any money and if they received any it was just a holiday bonus."
- Melissa Fischer (former trustee) -"She does remember some discussion about raises vs. bonuses but does not recall the details. She stated Miller would have the authority to give bonuses instead of raises as long as he was working within his approved budget."
- Larry Emery (former trustee) - "He stated Miller would have the authority to give bonuses instead of raises as long as he was working within his approved budget."
- Charles Lutzow - "He stated Miller was responsible for the budget and as long as he did not go over budget, he was able to use the funds as he saw fit. I asked if that included giving a bonus or stipend to employees and he stated yes."
Based on the investigation interview notes, a holiday bonus was the norm for Bob Miller during his time as Highway Commissioner and the employees expressed as much. While the notes do point to other "possible" justifications for some of the miscellaneous pay such as recycling and other township activities, there does not appear to be any documentation confirming those speculations.
The current highway commissioner, Andrew Gasser, stated he terminated the miscellaneous pay in February of 2018 as confirmed with this memo. It was terminated at the direction of his attorney. Gasser did make miscellaneous payments in November and December of 2017 and said it was not any kind of a holiday bonus. He stated he understood it was owed based on conversations with Dylan Stern and Brian Doubek, Road District employees who informed him that since they were entering into the winter schedule it was owed. Gasser acknowledged such pay should not have happened and noted there has not been any union grievance filed after stopping it which indicates they too knew it was wrong.
The Algonquin Township & Road District spent $291,790.63 on miscellaneous pay according to the figures in the investigation notes over a 4 1/2 year time frame. Sure seems to be a whole lot of money being spent without any documentation to support it. How that is not a violation of the law, specifically our Constitution, is beyond our understanding. While we understand some of those miscellaneous payments were paid during months not tied to Holidays, documentation is still lacking to support that they were in fact payments for work performed.