* Sen. Jason Barickman sent a letter yesterday to the attorney general requesting that a Legislative Audit Commission subpoena be enforced against a potential witness…

Dear Attorney General Madigan,

It is with appreciation that we begin the next phase of your representation of the Legislative Audit Commission and its audit of the Neighborhood Recovery Initiative (NRI.)

I appreciate your staff’s research, professionalism and participation in multiple, lengthy conference calls with Representative Mautino and myself, and our Chief Counsels. Your assistance has already been helpful to our efforts to fulfill our statutory obligation under the Legislative Audit Commission Act and ensure the timely production of documents related to the NRI audit, especially in light of our upcoming hearing(s).

As you are aware, the Legislative Audit Commission unanimously approved using subpoena powers, as provided by law, to obtain information related to the NRI audit. In accordance with a specific request from the United States Attorney investigating the program, the Commission has delayed hearing from individual witnesses until October 8, 2014.

However, the U.S. Attorney specifically did not request any delay in information gathering and we have proceeded appropriately.

As of today, Dr. Toni Irving has not complied with the subpoena issued by the Legislative Audit Commission and served upon her attorney John King on June 27, 2014. Despite a show of significant patience by the Legislative Audit Commission, only a small portion of the information requested of Dr. Irving has been produced, and broad-based claims of attorney-client privilege claims have been raised by the Office of the Governor through Dr. Irving’s attorney.

I would like to begin the process of enforcing the subpoena and respectfully request that your office immediately take the necessary steps to compel enforcement of the subpoena in a court of law. It is critical that the court consider this action in an expeditious manner, so as to ensure the LAC an opportunity to review any documents prior to our scheduled October 8, 2014 hearing. Further, this enforcement action is necessary to preserve the integrity of the LAC’s subpoena request and in support of the legal obligation’s LAC members have in reviewing the NRI audit. It is worth noting that our initial subpoena was issued well over two months ago. While we have made multiple and reasonable accommodations of Ms. Irving’s continued request of more time to comply with our subpoena as it relates to her production of documents, there are legitimate concerns that any further delays will significantly jeopardize the LAC’s ability to fulfill our legal obligation to review the NRI audit.

In order to assist you and to expedite this process, Jane Stricklin, Executive Director of the LAC, and the Chief Counsels for the four caucuses are preparing to deliver you a detailed timeline of the facts leading up to this request. A summarized timeline is as follows:

· On May 6, 2014, the LAC adopted a motion to utilize subpoena powers by a vote of 10 -1.

· On June 23, 2014, the subcommittee created by the May 6 motion, by unanimous vote, agreed to issue subpoenas to compel testimony and production of documents by the following individuals: Ms. Barbara Shaw, Dr. Toni Irving, Mr. Jack Lavin, Mr. Malcolm Weems, Mr. Warren Ribley, Mr. Andy Ross, and Mr. William (“Billy”) Ocasio.

· On July 16, 2014, the LAC convened a hearing where the subpoenaed individuals were to testify and produce documents. Due to a request from the US Attorneys’ Office, no testimony was taken. As to production of documents, all of the subpoenaed individuals except for Dr. Toni Irving and Barbara Shaw, either provided documents in his/her possession or written confirmation that he/she has no documents in his/her possession within a few days after the hearing. The attorneys for Dr. Irving and Barbara Shaw indicated that they needed some time to properly respond to the subpoena and were given 21 days to comply. Barbara Shaw’s attorney provided the subpoenaed documents on August 8, 2014. Dr. Irving’s attorney, Jon King, indicated that Dr. Irving is in possession of over 100,000 emails from her time in state service that would need to be reviewed for responsiveness.

· On August 6, 2014, Dr. Irving’s attorney, Jon King, requested an extension of time. After a conference call with the Co-Chairs of the LAC, Mr. King agreed to provide a letter of explanation of the steps taken with regard to reviewing the emails. As a result of this conversation, the time frame for compliance was extended to August 29, 2014.

· On August 14, 2014, attorney Jon King provided the letter of explanation requested in the August 6, 2014 conference call. That letter summarized that Ms. Irving had 107,892 emails and attachments. Of those, Mr. King believes at least 7,366 were potentially responsive, although as many as 1,394 may be protected by attorney-client privilege claims being made by the Office of the Governor.

· On August 27, 2014, Mr. King communicated that he would need additional time and requested an extension until September 9, 2014. That request was discussed in a conference call with Mr. King and the Co-Chairs on August 28, 2014. Mr. King was admonished that he needed to produce at least some documents immediately and that the Co-Chairs did not agree to any further extensions.

· On September 2, 2014, 177 documents were received by the LAC.

· On September 9, 2014, Mr. King sent a communication to Ms. Stricklin indicating that roughly 2,000 emails had been reviewed and that approximately 951 emails were responsive to the subpoena and were immediately being transmitted to the LAC. We have confidence that those emails have been (or will be promptly) received by the LAC.

Throughout the process, Mr. King has indicated that he has been communicating with Mr. John Schomberg, counsel for the Governor, who is asserting attorney-client privilege on a subset of these documents. It is my understanding that Ms. Stricklin and the Chief Counsels will coordinate any efforts with you to solicit unknown information related to these attorney-client privilege claims.

From the communications we have already had with your staff, it is my understanding that no further action must be taken by the LAC to initiate this enforcement action. In fact, the May 6, 2014, subpoena motion specifically authorized the Commission to “summon and compel” the “production of documents”. Further, Ms. Irving’s subpoena instructed her as follows: “You are commanded also to bring all relevant documents in your possession or control…” to the hearings held on July 16, 2014 and July 17, 2014, or be subjected “to punishment as provided by the Illinois Constitution and Section 4 of the Legislative Audit Commission Act”. Regardless, if necessary, I will request a special meeting of the LAC to consider whether to enforce the subpoena. Ms. Stricklin has informed us that such a meeting could be convened on 24 hours’ notice.

Our next hearing is scheduled for October 8, 2014. Obtaining non-privileged documents promptly is crucial to our ability to prepare for this hearing. Therefore, we need to expeditiously take the steps necessary to obtain these documents from Dr. Irving and to resolve any claims of privilege by the Governor’s Office.

Your immediate assistance in this process is requested.
Very Truly Yours,

Jason A. Barickman
State Senator
Co-Chairman, Legislative Audit Commission