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* 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
posted by Rich Miller
Thursday, Sep 11, 14 @ 12:31 pm
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It sounds professional and courteous.
Lets see what is behind that curtain and stop debating if the curtain even exist.
Comment by VanillaMan Thursday, Sep 11, 14 @ 12:43 pm
I don’t know what I don’t know here, but how does it work that an officer of the executive branch represents a committee of the legislative branch in seeking the judicial branch to “enforce” a legislative committee’s “subpoena” of former staff in the executive branch?
Not a whole lot of separation of powers going on there.
Barickman doesn’t cite statute or case law for his request. Are there any?
Why wouldn’t the legislative committee’s own lawyers seek a judicial remedy, if there is one?
Has any attorney general ever represented a legislative committee seeking the judiciary to compel testimony from now-private citizens?
Is a legislative audit committee “subpoena” actually a thing, or is just really a request? Is there a penalty for blowing them off?
I noticed Barickman alone signed the letter, without the Dem co-chair. I suspect this might just be a election-year partisan move to put Lisa in a trick bag.
And the work of the legendary and feared Legislative Audit Committee super-sleuths continues….
Comment by wordslinger Thursday, Sep 11, 14 @ 1:06 pm
Curious as to why Mautino’s signature is not on the letter.
Comment by Norseman Thursday, Sep 11, 14 @ 1:12 pm
Gearing up just in case the feds come back with nothing significant, my guess.
Comment by Ducky LaMoore Thursday, Sep 11, 14 @ 1:14 pm
Dear Sen. Reis:
This is how you handle things professionally. Take note of it.
Sincerely,
Demoralized
Comment by Demoralized Thursday, Sep 11, 14 @ 1:22 pm
Ditto to Demoralized, but I continue to question if this “investigation” is the best use of our tax dollars. By the way, is Irving paying the legal bills for this herself? That could be pricey.
Comment by dunno Thursday, Sep 11, 14 @ 1:26 pm
“Mrs. Madigan, conflict of interest for you holding on line one!!”
Comment by Big Muddy Thursday, Sep 11, 14 @ 1:36 pm
someone is bored.
Comment by Yellow Dog Democrat Thursday, Sep 11, 14 @ 1:41 pm
@word, I believe legislative committees are generally in the same legal position as administrative hearings of state agencies. They can issue subpoenas compelling witnesses to attend and compelling the production of documents, but enforcement is through the local circuit court when compliance becomes an issue. That would include a Rule to Show Cause as to why the noncompliant witness should or should not be held in contempt of court.
Comment by Louis G Atsaves Thursday, Sep 11, 14 @ 1:51 pm
The only thing that makes sense to me at this point is for the Attorney General to ask… the Attorney General the protocol of separation of powers and the constitutional powers charged to the office of the Attorney General, and after that gets straightened out, have the AG tell the AG the protocol and the statutory precedent.
This is a Dopey letter to get a press release.
They just can’t let October come and unload.
Much better than Reis, but pretty pathetic all the same.
Comment by Oswego Willy Thursday, Sep 11, 14 @ 2:06 pm
Before you scream “conflict of interest” take the time to learn what “conflict of interest” means is in the legal arena. It’s not a conflict. Read the Supreme Court rules. Like it or not, she is the Attorney General. She has hundreds of lawyers in her office, all who represent the State in some capacity. You rather pay an outside counsel hundreds of dollars an hour? No, that’s not a waste of taxpayer dollars.
Comment by ugh Thursday, Sep 11, 14 @ 2:09 pm
I’ll be interested in the answer/reaction to this from the AG.
Comment by A guy... Thursday, Sep 11, 14 @ 2:20 pm
–She has hundreds of lawyers in her office, all who represent the State in some capacity–
Does the attorney general ever represent the General Assembly? How about in an action where the governor’s counsel is asserting attorney-client privilege?
I’m asking, I have no idea.
But the committee does have their own lawyers.
It should be noted that Barickman writes:
–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. –
So…. the committee hasn’t even met to consider whether to “enforce the subpoena”
So….. what’s going on here?
Comment by wordslinger Thursday, Sep 11, 14 @ 2:28 pm
== Does the attorney general ever represent the General Assembly? How about in an action where the governor’s counsel is asserting attorney-client privilege? ===
Depends but yes.
Attorney client in this kind of case is very messy. The client is the office of the governor, not Quinn. i.e the governors attorney represents the offical office in his role, not the individual in the office. This is probably too insider baseball on the insider ethics and conflict stuff, but it is usually better for the office of the Governor attorneys to hire outside council to reprsent the office so avoid bluring that quinn the invidual wants v Quinn the governor.
Comment by Ghost Thursday, Sep 11, 14 @ 2:50 pm
Under the Illinois Constitution, the Attorney General is the state’s lawyer. Any branch or agency of state government seeking to file an action in court on behalf of the branch or agency must be represented by the Attorney General. The Attorney General can and has appointed special attorneys general to represent the branch/agency. If an agency wants their own lawyer to represent them, they have to seek permission.
Comment by freshstart Thursday, Sep 11, 14 @ 2:51 pm
Barickman thinks he IS the LAC, and doesn’t have to get a vote from the other members
Comment by orzo Thursday, Sep 11, 14 @ 4:12 pm
This is the professional and courteous way to do things.
In Illinois? Be still my beating heart.
Comment by Formerly Known As... Thursday, Sep 11, 14 @ 4:32 pm
==orzo - Thursday, Sep 11, 14 @ 4:12 pm:
Barickman thinks he IS the LAC, and doesn’t have to get a vote from the other members===
Um, I think any member of the panel could make a similar request. Being a Co-chairman certainly is enough oomph to do so. He’s asking a question. Politely and respectfully. Why does that bother you so, Orzo?
Comment by A guy... Thursday, Sep 11, 14 @ 5:31 pm
Am I reading this correctly: that what Reis initially screamed about as “100,000 missing e-mails,” which he then changed to “tens-of-thousands of missing e-mails,” has now turned out, by the committee Republican co-chair’s own count, to be less than 4,000 emails that may or may not have already been reviewed for relevance?
We shall see if the simple answer is that the subpoena has already been substantially complied with, when the last 951 are turned over as expected — while there might remain a dispute on what might be legitimately privileged.
Barichman’s behavior certainly looks better than Reis’. The letter might not have any real impact, but it’s professional and doesn’t hurt anything.
When you look at the numbers (like with a lot of politians’ statements), it is not as big a deal as they like to make it sound.
Comment by walker Thursday, Sep 11, 14 @ 5:35 pm
Good letter. Look forward to hearing the other side. Seriously, this is heavy stuff and all sides should be heard.
Comment by Lt. Guv Thursday, Sep 11, 14 @ 7:23 pm