A couple astute readers of my blog have pointed out to me an exception to the Public Officer Prohibited Activities Act that might be a loophole that would allow Ryan Spain to serve on the city council without violating the act. (We’re still waiting for an opinion from the state’s attorney’s office as of this writing.) The exception reads like this:
(b‑5) In addition to the above exemptions, any elected or appointed member of the governing body may provide materials, merchandise, property, services, or labor if:
A. the contract is with a person, firm, partnership, association, corporation, or cooperative association in which the interested member of the governing body of the municipality, advisory panel, or commission has less than a 1% share in the ownership; and
B. the award of the contract is approved by a majority vote of the governing body of the municipality provided that any such interested member shall abstain from voting; and
C. such interested member publicly discloses the nature and extent of his interest before or during deliberations concerning the proposed award of the contract; and
D. such interested member abstains from voting on the award of the contract, though he shall be considered present for the purposes of establishing a quorum.
Sounds pretty cut and dried, but in state law, things aren’t always what they seem. Just ask Bud Nystrom.
Roy “Bud” Nystrom was a city councilman in Crystal Lake, a northern suburb of Chicago, when the company he worked for put in a bid to build a Bio-Solids storage facility for the city’s new wastewater treatment plant. Even though he abstained from voting on the contract, even though the council rejected his company’s bid, and even though he only inadvertently broke the Prohibited Activities statute, Nystrom was nevertheless indicted on 10 felony counts of official misconduct and prohibited financial interest in August 1998. He later worked out a plea agreement and plead guilty to a misdemeanor charge of “attempted interest in a contract,” according to Chicago Tribune reports from the time.
What does this have to do with the exception I quoted? Well, the above exception I quoted was passed in 1997 and took effect in January of 1998. During Nystrom’s controversy, the Chicago Tribune had this to say about it (emphasis mine):
Already the [Public Official Prohibited Activities Act] statute has been relaxed by a new law that takes effect in January. The new law says that city officials only violate state law if they engage in public contracts on behalf of publicly traded companies in which they own more than a 1 percent stake.
Even with that change, Cowlin believes the law remains unfair. He thought the [Illinois Municipal] league should take a look at amending the law further and exempt municipal officials who are employed by private companies.
Heartland Partnership, where Spain is employed, is not a publicly traded company, but a private company, just like Nystrom’s employer. If one keeps reading the statute, it does say (emphasis mine):
(e) For the purposes of this Section only, a municipal officer shall not be deemed interested if the officer is an employee of a company or owns or holds an interest of 1% or less in the municipal officer’s individual name in a company, or both, that company is involved in the transaction of business with the municipality, and that company’s stock is traded on a nationally recognized securities market….
So it doesn’t look like the “b-5” exception is going to be enough for Spain, which may explain why it’s taking so long to get an answer from City Hall; I imagine they’re working with the state’s attorney, Spain and his attorney, and Heartland Partnership to come up with a way to allow Spain to serve without violating the statute. It will be interesting to see how it all gets resolved.
Spain controversy in the news
There have been some follow-up stories in the news that are worth mentioning. WEEK-TV interviewed Spain on their 9:00 newscast for sister station WAOE “my59”:
“I just find it very unfortunate that a particular member of the council is working to play games now as we look to get down to business,” said Spain. “So today while I was out trying to build relationship in Springfield (at the General Assembly), a member of council is looking to play games.”
I think it’s unfortunate that this is being portrayed by Spain and his supporters as just “playing games.” A more appropriate response would be, “I was unaware of that state law; I don’t believe I’m in violation of it, but I will do whatever it takes to make sure I comply with it.” Or something like that.
Spain would be smart to make friends with Gary and not treat him as an enemy just because he pointed out this state statute. Gary didn’t write the law, and he’s had to live by it — giving up business because of it — so it’s not unreasonable for him to want to make sure everyone else is abiding by it, too.
WEEK ran a follow-up story yesterday that just said Spain had met with city attorney Randy Ray, but that nothing had been resolved yet.
Yesterday’s “Word on the Street” column in the Journal Star states, “Spain’s boss Jim McConoughey says his agency is willing to do whatever needed to make sure there isn’t a problem.” That’s a very generous statement by Spain’s boss, considering it could mean the loss of $50,000 a year to his business.
Sandberg asks Lyons to retract statement
Then there’s this statement by state’s attorney Kevin Lyons that was quoted in the same article: “Lyons did note that some current City Council members have faced similar conflicts. ‘Of course, Gary Sandberg, as an architect, has had contracts and done work for people who do business with the city, and he just abstains,’ Lyons said.”
I e-mailed Gary to ask him about that statement, since it seems to contradict what he said in the comments section of my blog. In response, he copied me on an e-mail he sent to State’s Attorney Kevin Lyons and the Journal Star that read:
Unless you were misquoted, I would like to know one instance and/or all the instances where any one of my clients had a contract with the City of Peoria to provide services or a product while I was doing Architectural work for that client. Your statement, if quoted correctly, is inflamatory [sic] and totally incorrect and creates a situation where I could lose my Architectural license from the State of Illinois.
If NOT quoted correctly, I would expect you to have already sent a correction to the newspaper….
I do Architectural work for clients IN the City of Peoria. I do NOT have clients that do work FOR the City of Peoria.
I haven’t checked today’s paper to see if there was a correction. It will be interested to see if anything comes of that. Whenever lawyers are involved, it’s always the same story: hurry up and wait.
If Spain is such a bright guy (and I’m not doubting that he is since he won rather handily in his very first election), he shouldn’t have much trouble securing another position with a company that is not a city contractor, right?
Hey CJ, is this the National Enquirer? Do you think the State’s Attorney will contact you or the PJS with a statement? I doubt it. I’ll bet it has already been decided.
I thought Ryan’s comments last night fit perfectly. It is a game someone on the council started and it wasn’t about the law, it was about rattling Spain because of his successful election. No doubt the law exists and I know Ryan will not break any law to serve. Just maybe this law was reviewed by a lawyer before Ryan decided to run but hey, he didn’t inform you or the other blogs. Imagine that. The nerve of him. Maybe he is smarter than you think. Maybe he has another job?
What is really sad here is you compare this with someone from Chicago area that was charged with 10 felony counts? There was much more to that story than just him serving. You expect Ryan to be charged? Then they have to charge Jacob also be cause he circumvented the same state law with his appointment and then he ran for election. He abstains on every other vote. (I better not see a single Bud vender at Taste of Peoria)
At any rate, I’ll see you on May 1st when they swear Ryan in. Oh. By the way, I have lost a lot of respect for a few council members not because of the law and what it means, but because they are trying to try Ryan in the media for something that has yet been addressed publicly by the only person capable of doing so, Kevin Lyons. Even then, Mr. Lyons doesn’t have to call the Chronicle or the PJS when he renders his opinion if he hasn’t already done so.
CJ This time I did go “off” Sorry no excuses. I just got in from a really bad day with an inspector on my butt all day (ask your dad, he can relate) and I inserted my foot into mouth. I am going to stay silent until an offical ruling comes down on this issue. After all, that is the only opinion that will matter.
That’s okay, Emtronics. I know you feel strongly about it, and I respect that.
In response to your comments, this is a public issue, and there’s nothing inappropriate or scandalous about my covering it on my blog or sharing my interpretation of the law based on research I’ve done.
You are correct that the only opinion that will count in the end is the official opinion from Lyons or whomever. Even though Lyons may not notify the Chronicle specifically, his ruling will be a public ruling available to anyone. As a member of the public, I have as much right to it as you or anyone else.
Emtronics: Disclaimer — I voted for Ryan and others.
This situation is similar to many situations that I have encountered during the time that I have lived in Peoria, different rules for different people at different levels of the socioeconomic foodchain. Ryan (I emailed him and he responded) wants to be in compliance with the law. Whether it was Gary or CJ or myself or whomever, the same rules should be applied across the board to be in compliance, once it is evident that a violation occurs. If there is an exception then it needs to be valid. Period — that is one of the underlying chinks in Peoria’s armor that if you are high enough or connect to someone high enough in the foodchain you get a pass and if you are at the bottom, you are squished like a bug.
So, let’s all hope for an acceptable solution that Ryan will be able to serve. No one and I think that you would agrees would want to set Ryan up for failure if there is an issue. We should all be looking at it that we are looking out for him — covering his back — rather than an attack — just my opinion.
This is only the beginning, Ryan will obtain a ‘tougher’ hide over time — just ask someone who has been in the trench — they would agree with that assessment.
I’m a little confused about this statute and exactly what it all means, but wonder, does this statute mean if say Caterpillar made some sort of arrangement to help the city with snow removal, then would Councilman Turner would have to resign?
I’m not asking for such a thing, but only asking about the wide berth of such a statute and what it may or may not mean.
Other examples are probably out there, but this is possibly one of the more obvious.
Oops…guess the 1 percent stake would certainly excuse Turner and Cat.
Its better to have this question resolved completely and clearly before Ryan takes office. Then it won’t come back to bite him or the council later on. It is simply a question of clarification. No one should be attacking anyone. Just get a correct and once and for all ruling and let it go.
CJ: just curious, might not Rachael Parker have a similar conflict between her employer, the City of Peoria, and serving as a member of the Board of Education? She is with the city’s economic development office and since the district receives funding from the city and works with the city on TIFs, etc., couldn’t she have a problem representing both sides of an issue – especially if there is a conflict between the district and the city?