RE C
E
I~V£ D
CLERK~SOFF1C~
BEFORE THE ILLINOIS POLLUTION CONTROL~AkI~
2003
KANKAKEE,WASTE
MANAGEMENTILLINOIS
andOFEDWARDILLINOIS,D.COUNTYSMITH,
OF
))
~,
STATEiit~ OFControlILLINOISBoard
KANKAKEE COUNTY STATE’S ATTORNEY,
)
And BYRON SANDBERG
)
)
Petitioners
)
v.
)
)
PCB Nos 04-33, 04-34,
04-35
THE CITY OF KANKAKEE, ILLINOIS, TOWN AND
)
COUNTRY UTILITIES, INC. and KANKAKEE
)
REGIONAL LANDFILL, L.L.C.
)
LIVINGSTON COUNTY, ILLINOIS
)
)
Respondents
)
)
NOTICE OF FILiNG
PLEASE TAKE NOTICE that on December 9, I caused to be filed, with the Board’s
Clerk’s Office, via fax, with permission, one copy ofthe attached RESPONSE TO THE
COUNTY’S MOTION TO DISQUALIFY. I also placed, on December 9, 2003, in United States
mail, copies ofthe attached RESPONSE to all those on the effective service list, as set forth in
the attached PROOF OF SERVICE. I also placed, in United States overnight mail, on December
9, 2003, an original and nine (9) copies ofthis document, addressed as follows:
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100W. Randolph, Suite 11-500
Chicago, Illinois 60601-3218
Claire A. Maiming, Attorney
Printed on Recycled Paper
In accordance with 35111. Adrn. Code 101.202 and 101.302(g)
BEFORE
THE
ILLINOIS POLLUTION CONTROL BOARD
CLERK’S
DEC 102003
ØF~’F~
WASTEKANIKAKEE,MANAGEMENTILLINOIS andOFEDWARDILLINOIS,D.COUNTYSMITH, OF ))
pollutionSTATE OF
Control
ILLINOIS
Board
KANIAKEE COUNTY STATE’S ATTORNEY,
)
And BYRON SANDBERG
)
)
Petitioners
)
V.
)
)
PCB Nos 04-33, 04-34, 04-35
THE CITY OF KANKAKEE, ILLINOIS, TOWN AND
)
COUNTRY UTILITIES, iNC. and KANKAKEE
)
REGIONAL LANDFILL, L.L.C.
)
LIVINGSTON COUNTY, ILLINOIS
)
)
Respondents
RESPONSE TO COUNTY’S MOTION TO DISQUALIFY
Now comes CLAIRE A. MANNING, ofcounsel to Posegate & Denes, P.C., and in
response to the County’s Motion to Disqualify (“Motion”), filed with Board Hearing Officer
BradleyHalloran on December 1, 2003, provides the following.
As a preliminary matter, the County’s Motion is unnecessary, in that it was preceded by a
“Request Concerning Appearance” (“Request”) which I myself filed with the Board on
November 20, 2003, to which the County had already responded. While my Request was not
styled a “motion,” it nonetheless “moved” for a Board determination regarding the applicability
ofBoard procedural Rule 101.112(b)
(35
Iii Adm. Code 101.112(b)) to my continued appearance
in this matter as counsel to Town and Country Utilities, Inc. As a question concerning the
application ofthat procedural rule to my appearance in this matter had been raised, and could
only be resolved through the Board’s own processes, I sought the Board’s determination on this
matter and, clear from my request, would accept the Board’s interpretation ofthis rule to these
circumstances. Accordingly, there is and was no need forthe County’s Motion to Disqualify.
Nonetheless, since such motion was filed, I offer the following in response to the
County’s Motion, as well as to its “Response and Objections to Attorney Manning’s Request
Concerning Appearance” (County’s Response) filed with the Board on November
25,
2003.
Since the County’s filings are replete with misrepresentations concerning the events that gave
rise to my Request, this Response will also attempt to offer clarification and context to that
Request.
First and foremost, regardless of the attempts of County’s counsel to portray it otherwise,
the Board is well aware that I am not seeking to appear in a proceeding that was pending while I
was at the Board. Recognizing that my participation in most cases that were filed and docketed
during my tenure as Chairman would be “personal and substantial,” I have already determined
that I will not appear in any proceeding that was docketed and pending while I was at the Board.
Thus, the Board’s recent decision in
People v. Skokie ValleyAsphalt Co., Inc.,
PCB 96-
98 (October 16, 2003), while raised by the county and argued to be dispositive ofthe issue ofmy
participation in this matter, is really not even relevant to the applicability ofRule 101.112(b) to
the instant circumstances. Inthat case the Board disqualified former Board Attorney Assistant
Joel Stemstein, now an Assistant Attorney General, from participating in that proceeding, as a
representative ofthe People, because the case was docketed and pending while Mr. Sternstein
was at the Board. The Board determinedthat, as an Assistant to a Board member, Mr.
Sternstein’s participation in any pending proceeding would have been “personal and substantial”
and accordingly would require the application ofRule 101.112(b), which requires consent ofall
parties prior to participation:
“No former Board Member orBoard employee may represent any other person in any
Board proceeding in which he or she participated personally and substantially as a Board
Member or Board employee, unless the Board and, as applicable, all parties or
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Page 2
proponents in the proceeding consent in writing after disclosure ofthe participation.” 35
Ill. Adm. Code 101.112
By its very language this rule only applies to the representation ofa party in any “Board
proceeding” in which the former Member or attorney participated “personally and substantially”
while he or she was at the Board. Yet, the County uses the Board’s determination in
Skokie
Valley
to call for a Board determination as to whether my participation in the earlier proceeding
was personal and substantial and, if it was, bootstrap the application ofRule 101.112(b) to the
instant proceeding as well.
However, the Board’s focus on my Request ought not to be whether my participation in a
prior and different proceeding was personal and substantial as the Board interpreted that
phraseology in
Skokie Valley.
Indeed, such argument puts the “cart before the horse” because
Rule 101.112(b) only presumes conflict (and accordingly requires consent ofthe parties) in those
proceedings that were pending while I was at the Board. Thus, since the instant PCB 04-33, 04-
34,
04-35
(consolidated) is an entirely different docketed proceeding than PCB 03-31, 03-33 arid
03-35 (consolidated), Board Rule 101.112(b) neither requires consent for my appearance in this
proceeding nor prohibits that appearance.
The argument urged by the County not only fails to focus on the language ofthe rule
itself, it urges a reading ofthe rule that expands it well beyond its intended prohibition. A
review ofthe letter from Kankakee County State’s Attorney Ed Smith to me dated October 28,
2003 (see Request, Attachment C), makes that expansion clear. It was, indeed, Mr. Smith’s
letter, and his application of
Skokie Valley
to the instant proceeding, that motivated me to filethe
Request so that the Board might clearly address the application of Rule 101.112(b) to this
particular proceeding.
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Page 3
County’s counsel, in its obvious zeal to preclude me from representing Town & Country
in this matter, ignores the language ofthe rule itself and, regrettably and seriously, misinterprets
the arguments I made in my Request. I did not indicate that Rule 101.112(b) would unduly
restrict me in the practice of law (County Response, Paragraph 19), nor did I attempt to “draw
this Board’s attention away from her conflict ofinterest in this case by insinuating that some
other attorney who has entered an appearance in this proceeding also has a conflict ofinterest.”
(County Response, Paragraph 17). Rather, my comments in paragraph 18, set forth verbatim
below, were simply made in response to the County’s attempts to broaden the intended
application of Rule 101 .112(b)’s restrictions to proceedings that, while not the same as the one at
issue, nonetheless have a degree ofcommonality ofissues and parties:
“Since there is, quite often a similarity ofissues and identity ofparties in the practice of
law, and especially so in a specialized practice, the Board should exercise great care in its
interpretation ofRule 101.112(b). Specifically, to interpret the rule so broadly that it
applies, and consent is required, whenever there is a similarity ofissues and identity of
parties would unduly restrict me, and others, in the proper and appropriate practice of
law. As the Board knows, the environmental law community has a myriad of lawyers
within its ranks that were once members or employees ofthe Illinois Pollution Control
Board. Indeed, there is another attorney in this very proceeding, engaged by the county,
who was an attorney assistant at the Board during the late 80’s and 90’s who, during her
tenure, provided considerable input into the landfill siting decisions that today serve as
the precedent for other landfill siting issues, some ofwhich are relevant to the legal issues
in this very proceeding.” (Request, Paragraph 18)
Those comments were no more intended to impugn the integrity ofan excellent former
Board attorney, regardless ofher actual status in this proceeding, than they were intended to
impugn my own. The point is simply that rules are written so that those who practice before the
Board know what their obligations and responsibilities are. Rule 101.112(b), on its face,
requires that if a party desires to engage me to represent them in a proceeding that was pending
while I was at the Board, I can only do so with the consent of all parties. For my own personal
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In
accordance with 35 111. Adrn. Code 101.202 and 101.302(g)
Page 4
reasons, I have determined never to represent any party in any proceeding that was pending
while I was at the Board. Thus, issues concerning the nature ofmy participation in a proceeding
that had been pending while I was Chairman should never be the focus ofinquiry and “consent”
to my participation generally should not be required.
The County asks the Board in this proceeding, however, to obscure that bright line. In a
not so slight ofhand County’s counsel: ignores the language ofthe Board’s rule; makes no
argument concerning why these separate “proceedings” should be considered the same for
purposes ofRule 101.112(b); obfuscates the fact that it was Iwho sought the Board’s
clarification ofthe application ofRule 101.112(b) to my appearance in this proceeding; and,
generally, misconstrues the nature and intention ofmy Request. The Board should not be
hoodwinked by such chicanery.
To get to the meat ofthis issue, there are several reasons why the Board, for purposes of
Rule 101.112(b), should declare that this rule does not apply to my participation in the instant
proceeding and that this proceeding, for purposes ofRule 101.112(b) is simply not the same
proceeding as the earlier City ofKankakee landfill siting appeal. Those reasons are as follows:
(1)
The rule uses the word “proceeding;” it does not use any other word or concept; a
basic and general rule ofstatutory and regulatory construction is that words ought to be given
their generally understood meaning;
(2)
The generally understood meaning of“proceeding” in Board practice, and in the
Board’s definition contained in its procedural rules, is that a proceeding is an “action” (see 35 Ill.
Adm. Code 101 .202), docketed and numbered at the time offiling. While dockets may get
consolidated, and then would constitute the same “proceeding,” such is not the case here.
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In accordance with 35 111. Adrn. Code 101.202 and I01 .302(g)
Page 5
(3)
The instant three cases, filed in September of2003, and docketed into a single
proceeding (PCB 04-33, 04-34,
04-35),
constitute three separate appeals of a siting determination
made by the City ofKankakee in August of 2003, pursuant to an application filed by Town and
County in March of2003, and a hearing held before the City on that application in June of 2003.
All those actions occurred after I left the Board (December 31, 2002).
(4)
The prior three cases, filed with the Board on September 20, 2002 and docketed
into a single proceeding (PCB 03-31, 03-33, 03-35) constituted an appeal ofan earlier siting
determination made by the City ofKankakee, pursuant to a different application and, obviously,
with an entirely different set ofhearings.
(5)
That proceeding was filed in my waning days as Chairman and I had the
following role: (a) I authored and moved the Board’s administrative “Set for Hearing Order”;
(b) I authored and moved a Board order denying the County’s Motion for Summary Judgment;
(c) I assigned the matter to the authoring Board member.
(6)
The summary judgment motion and order, referenced above, solely concerned the
County’s argument that the City’s hearing, held in June of 2002, was fundamentally unfair.
Certainly a rarity in a landfill siting appeal, the County’s summary judgment motion, filed with
the Board on October 23, 2003, itself stated that it was brought “on the sole issue of the failure to
provide a public hearing, as such is
aper se
violation offundamental fairness, and dispositive of
the entire case.” (October 23 Motion at p. 2) The order denied the motion, so that all substantive
matters would be decided in the Board’s final Opinion and Order concerning this appeal.
(7)
The entirety of the substantive issues before the Board in PCB 03-31, 03-33, and
03-3 5 were decided by the Board in its Opinion and Order which was rendered after I left the
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Board and in which I did not participate. Further, I did not participate in any ofthe deliberations
or Board or staff discussions that led to the Board’s decision on the issues in that proceeding.
Clearly, the County desires that the Board expand the scope ofRule 101.112(b), so that
the issue ofconsent will preclude me from appearing in this matter. While I certainly appreciate
that the rule was promulgated to serve as a watchdog for conflict, the rule should be interpreted
as written. As I stated in my Request, when Town and Country approached me in October of
2003, Ireviewed this rule, as well as the Rules ofProfessional Conduct for Attorneys. I was
also, ofcourse, aware ofthe degree ofmy participation, and non-participation, in PCB 03-31, 03-
33 and 03-3
5.
Obviously, I did not consider that my participation in that proceeding created a
conflict in terms ofmy representation ofTown and County in this proceeding. For the Board to
broaden the scope of its rules, by analyzing the degree of my participation in an earlier,
tangentially related proceeding, is to add unwritten requirements to Rule 101.112(b)
—
requirements that were not there when I agreed to serve as counsel to Town and County.
I appreciate the Board’s attention in this matter and will, of course, abide by the
consequences ofits interpretation ofRule 101.112(b).
Res ectfully submitt
Claire A. Manning, Attorney
CLAIRE A.
MANNING
Posegate & Denes, P.C.
111 N. Sixth Street
Springfield, Illinois 62705
(217)522-6152
(217) 522-6184 (FAX)
claire~posegate-denes.com
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In accordance with 35 Ill. Adrn. Code 101.202 and l0I.302(g)
Page 7
RECEIVED
CLERK’S OFFICE
DEC 1 02003
BEFORE THE ILLINOIS POLLUTION CON1i~k~~rd
PollutiOfl
WASTE MANAGEMENT OF ILLINOIS, COUNTY OF
KANKAKEE, ILLINOIS and EDWARD D. SMITH,
KANKAKEE COUNTY STATE’S ATTORNEY,
And BYRON SANDBERG
V.
THE CITY OF KANKAKEE, ILLINOIS, TOWN AND
COUNTRY UTILITIES, INC. and KANKAKEE
REGIONAL LANDFILL, L.L.C.
LIVINGSTON COUNTY, ILLINOIS
)
)
)
)
)
)
)
)
)
)
)
)
)
PCB Nos 04-33, 04-34, 04-35
Respondents
AFFIDAVIT OF CLAIRE A. MANNING
Now comes affiant, CLAIRE A. MANNING, ofPosegate & Denes, P.C. and states that
all of the facts set forth in the preceding document, entitled RESPONSE TO COUNTY’S
MOTION TO DISQUALIFY are, to the best ofmy knowledge, true and accurate.
Furthereth, Affiant sayeth not.
) ss
Subscribed and sworn to before me this
9th
da ofDecember
Public
OFFICIAL SEAL
BORAH D. COOPER
1
;Y PUBLIC, STATE OF
LUWOI~~
3MMISSION EXPIRES
11~2.2OO~
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Printed on Recycled Paper
In accordance with 35 Ill. Adm. Code 101.202 and 101 .302(g)
Petitioners
State of Illinois
)
County of Sangamon )
Attorney