Board of Ethics

“Where People Count” 1000 Civic Center Drive, Niles, Illinois 60714 Telephone (847) 588-8000 ● Fax (847) 588-8051 ● TDD (847) 588-8059 Mayor Robert M. Callero Trustees Kim S. Biederman MINUTES James T. Hynes Joe LoVerde BOARD OF ETHICS Louella B. Preston Village Hall, Council Chambers Andrew Przybylo Alan Weel October 8, 2009 – 6:00 p.m. Village Manager A Special Meeting of the Board of Ethics was held on Thursday, October 8, 2009, at George R. Van Geem 6:00 p.m. at the Village Hall. Village Clerk Marlene J. Victorine The meeting was called to order at 6:05 p.m. by Chairman Joe LoVerde. Present: Also in Attendance: Trustee Joe LoVerde, Chairman Rob Kurfirst, Chairman of the Trustee Louella Preston Practices & Procedures Subcommittee Attorney Joseph Annunzio Chris Hanusiak, Chairman of the Attorney Mike Siegel Ethics Ordinance Subcommittee Michael Fries George Van Geem, Village Manager Kathy Barnat, Human Resources Coordinator Approval of Minutes Attorney Siegel and Trustee Preston suggested changes on pages 1, 2, 3 and 4 to the minutes of September 17, 2009. Page 1 – Report on Hotline Complaints Change “There are no complaint calls to date, other than the one that we the Village Attorney believes is more of an opinion–that Mayor Callero should appoint a Trustee. Mr. Annunzio stated that no other complaints were reported.” Page 2 – Finalize Procedures on Board of Ethics Structure and Responsibilities Change “..violations, no matter how received, should be logged by the Ethics Officer Village Attorney…” Page 3 – Practices and Procedures Subcommittee Report Change “…their own internal practices and procedures, and they in light of the needed clarification…” Change “…the Citizens Committee is advisory and it all requests for information or action comes to the Ethics Board with the request that the Ethics Board act.” Change “Trustee Preston added that all the committees recommendations are advisory.” www.vniles.com  Board of Ethics Meeting, October 8, 2009 Change “They present something and it is discussed and considered by the Board of Ethics.” Change “Mr. Kurfirst stated that the concern of the subcommittee…” Change “…they the recipients are more likely to take it seriously…” Add to 3rd paragraph “All requests for information and action will come from the Board of Ethics.” Change “Mr. Kurfirst suggested they the Village consider posting…” Change “He knows they the Board of Ethics and his subcommittee are doing a lot of good things and but the citizens of Niles have no idea…” Page 3-4 Change “On behalf of the Board his subcommittee, he would like to make an appeal for transparency through existing technology–especially updating the website for their his subcommittee’s benefit…” Page 4 Change “…go other over rough drafts…” Trustee Preston made a motion to approve the minutes of September 17, 2009, with the recommended changes, seconded by Attorney Annunzio. On roll call, all concurred. Hiring Practices of the Village of Niles Chairman LoVerde stated that the purpose of this meeting is to deal with the hiring practices of the Village of Niles. At the October 1, 2009, Board of Ethics meeting, the Village Manager indicated there were some concerns regarding the hiring practices of the Village of Niles. The Chairman stated that in order to understand how Niles operated, he researched the archives to try to find out exactly what form of government that the Village of Niles operates under. It is his understanding, that the Village of Niles is a Village Manager form of government. Chairman LoVerde stated that on September 11, 1962, the Village of Niles changed to the Village Manager form of government, and believes that they may have operated under the Strong Mayor form of government at that time. Chairman LoVerde stated that by nature of being a Village Manager form of government, the Village Manager has the responsibilities and duties to hire and fire, and the Manager, not the Mayor, is the administrative head of the municipal government and, therefore, is responsible for the efficient administration of all the departments and the effective implementation of the policies and procedures established by the Board of Trustees. He stated that, under the Village Manager form, a Manager has the authority to appoint and remove all department heads. Effectively, this authority allows the Manager control of the employees and the staff of the municipality, and has authority over the directors and exercises control of all the departments. Chairman LoVerde read an excerpt from the Village Code of Ordinances as to the Village Manager’s Powers and Duties: The Village Manager can “Recommend to the Board the appointment and, when necessary in the best interests of the Village, the suspension or removal of all employees of the Village. All such recommendations shall be based upon merit and upon the qualifications or disqualifications of such employee without regard to political belief or affiliation.” Chairman LoVerde asked if he is right in assuming that the Village is operating under the Village Manager form of government. Village Attorney Annunzio responded yes. Chairman LoVerde then told Village Manager George Van Geem that, under our Ordinance and the Village Manager form, he has that power and authority to hire and fire. Chairman LoVerde wanted to make that clear, 2  Board of Ethics Meeting, October 8, 2009 because at the last Ethics Board meeting, Mr. Van Geem indicated that there was some parameter that he was waiting for from the Ethics Board, and Chairman LoVerde didn’t want the Ethics Board to hold anything up. Since then, the Mayor has come down with a directive that the Village Manager has the authority to hire and fire without any influence from any politician or anyone else. Attorney Siegel stated that the Employee Manual actually said, in its current form, that all hiring and firing require the final approval of the Mayor. Attorney Siegel’s recommendation would be to change “final approval of the Mayor” to “final approval of the Village Manager”. Changes to the Employee Manual have to be reviewed and approved by the Board of Trustees. Chairman LoVerde asked Mr. Van Geem where we go from here, now that we agree that the Village has a Village Manager form of government, and we agree that Mr. Van Geem has the authority. Chairman LoVerde stated that the Board of Ethics doesn’t have to do anything in terms of giving Mr. Van Geem anything written that would allow him to fire or hire. Mr. Van Geem stated that sounded right to him. Mr. Van Geem stated that what the Ordinance and laws say are slightly different than what our past practice has been and that he was really looking for clarification. Mr. Van Geem asked if we are now going strictly with the letter of the Ordinance, and abandoning past practice, or somewhere in between. What Mr. Van Geem is hearing from the Chairman is that the Chairman wants to go by the letter of the Ordinance now. Attorney Siegel stated that he thinks the Village Board of Trustees is the entity that makes that decision. Chairman LoVerde added that everything we have since 1962, according to the Ordinance and according to the Village Manager form of government, indicates that Mr. Van Geem would have had the authority to hire and fire. Chairman LoVerde said that Mr. Van Geem stated at the last meeting that he was going to wait for direction from the Board of Ethics to support in some kind of clear direction that this is what they want him to do. Chairman LoVerde stated that the position, at least speaking for himself, is that Mr. Van Geem already had all the tools under the law. Mr. Van Geem responded, under the law, yes, but not under actual past practice. Mr. Van Geem stated that while the law says one thing, current practice says another and you have to go by what the common current practice is in your organization. Mr. Van Geem continued to say that in our organization the common current practice was that the Mayor had final say on all hiring and firing. Mr. Van Geem stated that if we are going to totally ignore this organization’s culture and past practice, then the Board is not going to fully understand how personnel issues were handled over his term in office at the Village. Chairman LoVerde stated that we are not going to ignore it, but, again, he doesn’t think that it was the Board of Ethics that needed to give him direction for anything that may have happened in the past. It was agreed that this question should be referred to the entire Village Board for their interpretation and clarification of Sec 2-104 Powers and Duties of the Village Manager in the Village Ordinances. Mr. Fries stated that he can see how there is some confusion because it does say recommendation to the Board when necessary. Mr. Fries echoed Mr. Van Geem’s sentiment that the Village Trustees should clarify this. Chairman LoVerde agreed that it will go to the Village Board and this Ethics Board will support him 100 percent, but it was important to understand that the Ordinances and the law did not direct Mr. Van Geem to not be involved in hiring and firing, it was the culture. Mr. Van Geem agreed. 3  Board of Ethics Meeting, October 8, 2009 Trustee Preston stated that one of the Board of Ethics points in the 9-point plan was to review the Village Manager’s job, the Village Attorney’s job and the responsibilities of the Mayor and the Trustees. Trustee Preston suggested a possible Village Board pre-board meeting to discuss the current job description and Ordinance language for the Village Manager. Chairman LoVerde stated that, at the Village Manager’s request at the last Board of Ethics meeting, they also discussed the Whistleblower Act. He stated this is a protective tool that he recommended be adopted immediately. Attorney Annunzio stated that the Village does not have the Whistleblower Act in our Ordinances. The Whistleblower Act was also not included as part of the new Ethics Ordinance. Various options were discussed by the Ethics Board members on the best way to quickly implement the Whistleblower Act for the Village. Chris Hanusiak, Chairman of the Ethics Ordinance Subcommittee of the Citizens Compliance Plan Committee, stated that his subcommittee put Whistleblower protection into the draft Ethics Code which Attorneys Siegel and Annunzio reviewed. Attorney Annunzio stated it is basically the State’s Act modified to apply to the Village of Niles. The Ethics Code is still in draft form and not approved yet. Mike Fries stated that he thinks that the State law is applicable to the Village of Niles as an employer now and that every employee of the Village of Niles is protected by the State Whistleblower Act. Attorney Siegel added that if you look at the definition of employer, it applies to any entity that has one or more employee in the state including a political subdivision and unit of local government. It appears that this Whistleblower Act already applies to the Village of Niles and basically prohibits retaliation by an employer against the employee who discloses information. Mr. Fries added that if there was a victim of some type of whistleblower conduct, they could utilize this statute themselves to try to gain some relief. He agreed that it wouldn’t give the Village of Niles, the Village Manager or the Board any grounds to take action, it’s a civil remedy. He asked if it would make sense when amending the Ethics Ordinance for the Village to specifically, by ordinance, adopt the Whistleblower Act. Attorney Siegel asked Attorney Annunzio to see how other municipalities have dealt with this. Attorney Annunzio suggested that instead of adopting the 740 ILCS Whistleblower Act; it might be easier to pull the Whistleblower section out of the Ethics Ordinance Subcommittee’s draft and work with that. Mr. Hanusiak stated he could pull it and send it out. Assuming an employee is terminated, Chairman LoVerde asked if the Employee Manual now allows them to appeal to the Board of Trustees. Kathy Barnat, Human Resources Coordinator, responded that the current Employee Manual says “appeal to the Mayor.” Since they are in the process of updating the Manual, now would be the time to change that. Chairman LoVerde stated that if we are truly the Village Manager form of government, everything he reads takes the power away from the Mayor and he becomes advisory and the daily operations are with the department heads and the Village Manager. Attorney Annunzio stated that the Employee Handbook may be void to begin with because it is counter to state law. The Village Manager and all the employees have a built in protection against retaliatory discharge. Attorney Siegel stated that the answer may be that the Ethics Code simply says “in addition to any remedy that is provided by the State of Illinois under the State Whistleblower Statute, any individual who believes that they are being retaliated against for blowing the whistle can file a complaint before the Board of Ethics.” Trustee Preston agreed. Mr. Fries 4  Board of Ethics Meeting, October 8, 2009 stated that the Ordinance creating this Board somewhat says that already. Anyone who thinks they are aggrieved of some type of action or anything involving an ethics violation is to be brought to the Ethics Board, a complaint is to be filed and sets out procedures of how it is supposed to be handled. Mr. Hanusiak asked if the Village is going to terminate someone, will they have an option to say this is unethical and I want to go see the Ethics Board before they terminate me. Then they can come back as a citizen saying I want due process from you, are they going to have an option with this. Mr. Fries stated that he does not believe that the Board of Ethics has the authority to review a complaint. Attorney Annunzio stated that an employee cannot be terminated unless there is due cause, and that means there are things in the file. Termination is the final step that the Village has against an employee that doesn’t follow the rules and regulations. Attorney Siegel gave a hypothetical example of an employee who is terminated by the Village Manager for bad employment conduct, but the person says I’m really being fired because I supported Candidate A instead of Candidate B. So the question is, does the person get fired and then he has a remedy with the Board of Ethics? They can bring it here, but what do we do with it. The Board of Ethics needs to think this through. The Ordinance that created this body says we can give advisory opinions, we can investigate and hear complaints and render an opinion, make recommendations to the Village Board of Trustees for changes in the Code of Ethics, and all complaints and investigations concerning ethical behavior shall be conducted by the Village Attorney or his or her designee. All findings will be presented to the Village President and the Board of Ethics. Chairman LoVerde asked, if someone is terminated and has the right to appeal to any board above the Village Manager, isn’t that counterproductive to what we are trying to get accomplished here. Trustee Preston stated that we are trying to have good government here and that Mr. Van Geem is not infallible and someone may be challenging his right to fire him. Chairman LoVerde stated that he would hire an attorney then. Trustee Preston stated that according to what our past culture has been, they would appeal to the Mayor; because technically someone wasn’t fired until the Mayor said they were fired. Kathy Barnat stated this was correct. Attorney Annunzio stated that if someone filed a complaint, the Board of Ethics would look at the complaint and the employee file and determine whether there is any cause. Then the Board of Ethics would then report to the Board of Trustees that this is not an ethics violation. The way it is written, an employee is not entitled to a full-blown hearing, they are entitled to lodge a complaint and the Board of Ethics makes a determination that is sent to the Board of Trustees. For the record, Mr. Fries stated that the ordinance sets forth the parameters if there is a hearing and they think somebody does have a legitimate ethical complaint. There is a hearing process, and the Board of Ethics would render an opinion and issue it to the complainant, the respondent, the appropriate government authority and members of the Board of Trustees. Chairman LoVerde stated that if someone is wrongfully terminated from any job, there is a procedure for that with the Department of Labor. His concern is that we are getting back into somewhat an arena by which we will be second-guessing someone’s decision or having the potential to reverse someone’s decision. He would like to believe that no one is terminated without just cause. Mrs. Barnat stated that the Village does not fire that many people, and if we do, we take it very seriously. We give them many chances and write-ups and the file is checked and rechecked and Attorney Annunzio and the director and supervisors are involved, and they make sure they have a good case why that person is being terminated. Mrs. Banat stated that if they were to file a 5  Board of Ethics Meeting, October 8, 2009 complaint, the Department of Labor has ways that they can go about filing themselves. If it came to the Board of Ethics, Mrs. Barnat thinks that Attorney Annunzio would say that the Village investigated this and there were a series of discipline problems and it would be dropped. She is concerned that there is confidential information in personnel files that she doesn’t think should be available and shared with just anyone. Attorney Annunzio stated that he believes that there are enough safeguards in place that George Van Geem can do his job. Mr. Hanusiak asked about the higher level employees that are reappointed every year. What if they don’t get reappointed? Trustee Preston stated that those employees are considered “at-will” employees and they have a contract for a year. On May 1, when the contract comes up for renewal, the Village Board of Trustees does not have to give any reason for not renewing them in their position. There is nothing they can do. Chairman LoVerde asked if the paragraph in the current Employee Handbook that says “all personnel decisions involving suspension or termination of an employee other than certified police or certified fire must have final approval of the Mayor,” has any weight to it. Attorney Annunzio responded that he’s not sure what weight it has because it’s counter to state law. Trustee Preston added that it was adopted by the Board of Trustees. Chairman LoVerde stated that it obviously was a tool that was used. Does it get removed legally so that it is not in there? Attorney Annunzio responded that it must be changed, but right now if our Employee Manual says that the Mayor has the last word and the state law says he doesn’t have the last word, state law is what is followed. Mr. Fries added that is why Mr. Van Geem needs the clarification from the Board as a whole. The Employee Manual says one thing; practice says another, and state law yet another. Chairman LoVerde stated that when the directive was given from the Mayor via memo regarding the Village Manager’s role and responsibility that was enough. Mr. Van Geem asked the Board of Ethics to at least recognize that there is some confusion in the guidelines and policies and laws and ordinances. He asked the Board to decide what it is and formalize it as best we can and those will be his marching orders. Trustee Preston stated that she thinks it needs to be on the October Board of Trustees agenda. Attorney Siegel stated that the simple solution is that we agree that the reference to the Mayor being the final arbiter is stricken from the Employee Manual and is replaced by the Village Manager, so there is no confusion whatsoever in any document in the Village. It’s on record, and Mr. Van Geem has his marching orders. Trustee Preston stated that after we review this at the pre-board, we could have a resolution on the agenda saying, it has come to our attention that the current Employee Manual makes a statement such that the Mayor is the ultimate authority. Upon review of the Ordinance, we wish to be ethical and follow the law and until the law is changed, this is our standard operating procedure within the law. Mr. Fries stated that the law in Niles is the Ordinance and the law is Ordinance Sec. 2-104, and Subsection 4 is not clear at all. It says the Village Manager makes recommendations when to appoint and when necessary to suspend or remove. It doesn’t say that the Village Manager has the authority to fire and hire because he gets to recommend. He suggested that if it is going to get cleared up, it’s a simple change. Subsection 4 has to be cleaned up. The Board of Trustees has to take formal action and the Board of Ethics can’t sanction it. 6  Board of Ethics Meeting, October 8, 2009 Chairman LoVerde asked if the Village Board has the authority to change the law. Attorney Annunzio responded that if the Board of Trustees wants to change the Managerial Form of Government 3.1, it requires a referendum by the citizens to change the form of government. Trustee Preston stated that we’re not talking about changing the form of government, we’re talking about changing one of the pieces of the job description of the Village Manager, and that’s by Ordinance. Attorney Siegel stated that there is a state law that defines our form of government, and there is a Village Ordinance that seems to be a little muddy. And then there is an Employee Manual that seems to run contrary to the stated definition of the Village government, but could fall within the Ordinance’s muddy language. This is why Mr. Van Geem is sitting here tonight. Even though the Mayor and everyone else are giving direction, it’s a state of confusion. The Board owes the Village Manager some clarification – even if all they did at the next Board meeting is clean up the Manual. It seems to Attorney Siegel that would be enough, because the Manual is in compliance with state law and if there is any ambiguity in the Village Ordinance, the Manual as expressed by the Board is clarified. It’s up to the Board of Trustees which way they want to go at it, but something needs to be done. Kathy Barnat suggested there should be a pre-board meeting to discuss what the Village Manager’s responsibilities are and define them. Then amend one particular section of the Employee Manual and bring it to the Board for approval. The Board can amend the section and that would clarify the Village Manager’s responsibilities. Trustee Preston stated that something needs to be done – she asked if the Ethics Board needs to make a recommendation on language change, and if so we need to meet again before the Village Board meeting to review it because none of us are ready to write language and agree to it in order to recommend it to the Village Board. Chairman LoVerde was concerned about how long this process will take before we can give the Village Manager the support he is looking for. These are important issues for this community and Chairman LoVerde stated that the Board of Ethics has a responsibility to get information to the Board so they can understand it and act. Mr. Fries summarized the situation by stating that this matter was brought to the Board of Ethics by the Village Manager and under the powers and duties of this Board, as set forth in the Ordinance, the Board has the authority to give an advisory opinion on proposed action as requested to do so by an official employee or Niles resident. Mr. Fries is not sure that the Village Manager made an official request for an advisory opinion, but thinks that is how the Board is treating it. The Board of Ethics discussed it at length and thinks they are making a recommendation to the Village Board to change the section of the Ordinance that is applicable. The Employee Manual is also in the process of being changed. Since all of this is happening, Mr. Fries feels that the Ethics Board was responsive to the issue to the extent that they had the authority to be. He added that the Ethics Board could work on changing the language, but he believes that is a Village Board issue. The Ethics Board was very responsive and didn’t wait until the next meeting; a special meeting was called this evening to address the issue. Chairman LoVerde stated that from a common sense standpoint, if you have a bad employee they should be terminated, the tools to have that happen have to be in place. In the current climate that Niles has been in, he thinks the need to respond to these issues become more important, more 7  Board of Ethics Meeting, October 8, 2009 critical. If the Village Manager makes a statement that he can’t hire and fire people and there have been political sponsors; that’s a pretty powerful statement. Mr. Fries asked the Village Manager if something was accomplished at this meeting or would he like different action by the Ethics Board. Mr. Van Geem responded that he thought that the action that has been discussed and recommended would be sufficient. The memo from the Mayor is good marching orders but there are some conflicts with the Employee Manual that need to be fixed. Also, there are some ambiguities in Subsection 4 that need to be cleared up. Attorney Siegel made a motion, seconded by Attorney Annunzio, that the Board of Ethics recommend to the Board of Trustees that the current Employee Manual be amended to make clear that hiring and firing decisions are the Village Manager’s and not the Mayor’s and that direction be given to the Village Attorney to take a look at the applicable section of the Ordinance, so it can be amended in an appropriate way with due consideration so that it complies with State law defining home rule. Trustee Louella Preston amended the motion to be time specific, specifically that the Employee Manual be amended to remove the authority from the Mayor for hiring and firing and this will be done for the October 27, 2009, Board meeting and that a review of the current powers and duties of the Village Manager, specifically Sec. 2-104, Subsection 4 of the Niles Code of Ordinance, will be done in a timely fashion. Trustee Preston stated that she and Trustee LoVerde can request to put this on the Board agenda on behalf of the Board of Ethics. Trustee LoVerde agreed. Trustee Preston added that the Board of Ethics can review this at their next meeting on November 5th. As a corollary to this motion, she is still requesting a pre-board meeting for the Trustees to review this as a Committee of the Whole to see what is here and to understand what the culture has been. At the November Board meeting we will have language to change Subsection 4 and clarify it. Attorney Siegel accepted Trustee Preston’s friendly amendment. On roll call, all concurred. Motion carried. Executive Session Mr. Fries made a motion, seconded by Trustee Preston, to convene to Executive Session at 7:20 p.m. to discuss Hotline complaints. On roll call, all concurred. The meeting reconvened to Regular Session at 7:55 p.m. On roll call, all members were present. Report from Village Attorney on Disposition of Hotline Complaint The Hotline complaint that was given to the Village on October 2, 2009, has been determined to be a work rule violation and not an ethics violation. This complaint will be forwarded to the Village Manager for further disposition and the Ethics Complaint log will show this. 8  Board of Ethics Meeting, October 8, 2009 Other Business Chairman LoVerde stated that there was a request by the Village Manager to indicate if the Board had anything more to add regarding the hiring practices. The Chairman also indicated that the Board of Ethics would like a copy of the Investment Policy and Purchasing Policy. Attorney Siegel stated that at the last meeting he asked the Village Attorney to get him a copy of both and he put together a memo with questions about both the Ordinance and the Policy and a cover email with some requested follow-up by either Attorney Siegel or an independent accounting entity. He questioned the Village’s investments in derivatives and the fact that they are getting a 12 percent return on some investments. He put a sense of urgency on this issue and stated that someone needs to look at this to make sure that the investments fall within the Public Investment Act and the sense of the Village Ordinance. Next Meeting The next meeting is scheduled for November 5, 2009, at 6:00 p.m. Motion to adjourn was made by Trustee Preston, seconded by Attorney Siegel. All concurred and the meeting adjourned at 8:00 p.m. Marlene J. Victorine Village Clerk 9