ILLINOIS POLLUTION CONTROL BOARD
October 16, 2003
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
SKOKIE VALLEY ASPHALT, CO., INC.,
EDWIN L. FREDERICK, JR., individually
and as owner and president of SKOKIE
VALLEY ASPHALT, CO., INC., and
RICHARD J. FREDERICK, individually and
as owner and vice president of SKOKIE
VALLEY ASPHALT, CO., INC.,
Respondents.
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PCB 96-98
(Enforcement – Water)
ORDER OF THE BOARD (by T.E. Johnson):
This matter is before the Board on a September 9, 2003 motion to dismiss the second-
amended complaint and to recuse attorney Joel J. Sternstein (Sternstein), filed by Skokie Valley
Asphalt Co., Inc., Edwin L. Frederick, Jr., and Richard J. Frederick (respondents). On
September 11, 2003, the complainant filed a response to the motion.
For the reasons articulated below, the Board grants the motion in part. The Board finds
that no prejudice or bias result from Sternstein’s prior involvement. However, in order to avoid
even the appearance of impropriety, Sternstein is disqualified from appearing in this matter. The
Board declines to dismiss the second-amended complaint or void all orders issued regarding the
second-amended complaint.
MOTION TO DISMISS
In their motion, the respondents assert that the complainant filed a second-amended
complaint on July 26, 2003, and that concurrent with the filing of the second-amended
complaint, Sternstein filed an appearance as co-counsel on behalf of the complainant. Mot. at 1-
2. The Board accepted the complaint on October 17, 2002. The respondents contend that
Sternstein was an employee of the Board for the period during which the instant matter was
before the Board, and that in his capacity as an employee of the Board, he participated personally
and substantially in the proceedings. Mot. at 2.
The respondents argue that Board regulations provide,
inter alia
, that no former Board
employee may represent any other person in any Board proceeding in which he or she
participated personally and substantially as a Board Member or employee, unless the Board, and
the applicable parties consent in writing after disclosure of the participation.
See
35 Ill. Adm.
2
Code 101.112(b). The respondents assert that Sternstein did not disclose his earlier participation
in this matter to the respondents. Mot. at 2.
The respondents assert that they have not consented in writing to allow Sternstein to
represent the complainant in this matter. Mot. at 2. Finally, the respondents argue that any
matters filed by the complainant and any orders issued by the Board subsequent to Sterstein’s
appearance are tainted by the apparent bias and conflict of interest.
Id
.
The respondents ask that the Board dismiss the second-amended complaint, and also void
all orders issued regarding the second-amended complaint. Mot. at 2. The respondents further
ask that Sternstein be recused from further representing the complainant in this matter. Mot. at
2-3.
RESPONSE
In response, the complainant argues that since the respondents’ motion to dismiss was not
filed within 30 days after service of the second-amended complaint, it should be denied. Resp. at
1. The complainant asserts that by the time the Board issued the October 17, 2002 order
accepting the second-amended complaint, Sternstein’s entry of appearance had been on file for
months. Resp. at 2.
The complainant acknowledges that Sternstein is a licensed attorney who previously
worked for the Board in the capacity of attorney assistant, whose duties included drafting
opinions and orders for the Board. Resp. at 3. The complainant argues that respondents’
assertion that Sternstein personally and substantially participated in this case, is misplaced in that
there is not a reference to any work, order or opinion written by Sternstein, nor is there a
reference to any work, order or opinion written by Board Member Nicholas Melas, for whom
Sternstein worked. Resp. at 2-3. The complainant maintains that respondents did not provide a
basis for an inference that Sternstein personally and substantially participated in this case while
working at the Board. Resp. at 3. The complainant asserts that this case was never assigned to
Board member Melas during the time Sternstein worked for the Board (from July 1998 through
June 2002).
Id
.
The complainant asserts that, when hired, Sternstein advised the Attorney General’s
Office (AGO) of the pending cases he worked on at the Board where the AGO represented a
party. Resp. at 4. The complainant contends that Sternstein never worked on this case at the
time he was employed by the Board so there is no conflict and no basis for recusal.
Id
.
The complainant attaches an affidavit sworn to by Sternstein to the response. In the
affidavit, Sternstein states that during his tenure at the Board, Board Member Melas and he were
responsible for drafting the opinions and orders on Board Member Melas’ assigned enforcement
cases. Aff. at 1. Sternstein states that the instant case (People v. Skokie Valley Asphalt, PCB
96-98) was not assigned to Board Member Melas during Sternstein’s tenure at the Board. Aff. at
2. Sternstein states that he never drafted any opinions or orders or had any other involvement
pertaining to Skokie Valley Asphalt during his tenure at the Board. Afft. at 2. Sternstein states
that when he began working for the AGO, he provided a list of the pending enforcement cases
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that he was working on while at the Board, and that he would not, nor would he be allowed to,
work on enforcement cases for the AGO, that he previously worked on at the Board.
Id
.
Sternstein states that during his tenure at the Board, he never participated personally and
substantially in any proceeding related to Skokie Valley.
Id
.
DISCUSSION
Generally all motions to strike, dismiss or challenge a pleading must be filed within 30
days after service of the pleading unless the Board determines that material prejudice would
result.
See
35 Ill. Adm. Code 101.506. The complainant is correct in arguing that any motion
attacking the second-amended complaint was required to be filed by November 2002. However,
as the respondents assert that Sternstein’s employment with the Board was not disclosed, the
Board finds that the respondents would be materially prejudiced were the motion to dismiss not
heard. Accordingly, the motion will be considered.
No former Board employee may represent any other person in any Board proceeding in
which he or she participated personally and substantially as a Board Member or employee,
unless the Board, and the applicable parties consent in writing after disclosure of the
participation. 35 Ill. Adm. Code 101.112(b). As neither disclosure was made nor consent given,
the only issue is whether or not Sternstein participated personally and substantially in the instant
matter while an employee of the Board. The complainant argues that Sternstein’s involvement
did not rise to the level of “personal or substantial” participation. The Board must, therefore,
determine what constitutes “personal and substantial” participation.
Although the case was never assigned to Board member Melas during Sternstein’s tenure
(July 1998 through June 2002), the docket reveals that the Board issued two orders on this case
during that time period. On May 3, 2001, the Board denied a motion for summary judgment
filed by the complainant; and on August 9, 2001, the Board granted respondents’ motion for
leave to file a reply
instanter
, granted complainant’s motion to reconsider, but upheld the
Board’s prior ruling that genuine issues of material fact were present and directed the case to
hearing. A review of the Board’s Meeting Minutes for those two meetings confirms that
Member Melas voted on each of the orders.
See
Board Meeting Minutes, May 3, 2001 and
August 9, 2001.
Sternstein states in his affidavit that he never drafted any opinions or orders or had any
other involvement pertaining to Skokie Valley Asphalt during his tenure at the Board, and
therefore, never participated personally and substantially in any proceeding related to Skokie
Valley. The record indicates that his direct superior, Member Melas, voted on two orders
involving this matter. It is presumed that all Board Members reach well reasoned decisions on
each case they vote on, and are adequately prepared to make such decisions. Attorney assistants
necessarily play an integral part in preparing their Board Member for each Board Meeting. Of
course, attorney assistants do not cast votes. Further, as a seven-person board, any one Board
Member is never the sole vote on any given case. Nonetheless, the Board views Sternstein’s
prior Board employment under these circumstances as personal and substantial participation.
Accordingly, the Board disqualifies Sternstein from further appearances in this case.
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The Board does not find any prejudice as a result of Sternstein’s prior involvement, and is
not convinced that matters filed by the complainant and orders issued by the Board subsequent to
Sterstein’s appearance are tainted.
Since the second-amended complaint was accepted on October 17, 2003, the Board has
issued four orders in this case. On March 20, 2003, the Board denied the complainant’s motion
for summary judgment. On June 5, 2003, the Board denied complainant's motion for leave to
file a reply, granted complainant's motion to strike affirmative defenses in part (striking the first
two affirmative defenses, but allowing the third) and denied Skokie Valley's motion to dismiss
the Fredericks from the case. On July 24, 2003, the Board denied the respondents’ motion for
reconsideration, and on September 4, 2003, the Board granted complainant's second motion to
compel in part, and denied it in part.
A review of the record does not indicate, nor do the respondents assert any specific
instances of bias as a result of Sternstein’s prior involvement. The respondents’ request that the
Board dismiss the second-amended complaint, and void all orders issued regarding the second-
amended complaint, is denied.
CONCLUSION
The Board grants respondents motion in part. Although no prejudice or bias resulted
from Sternstein’s prior involvement in this matter, Sternstein is disqualified from further
appearing in this proceeding. Additionally, the Board declines to dismiss the second-amended
complaint or void all orders regarding said complaint.
IT IS SO ORDERED.
Board Member M.E. Tristano dissented.
Board Member N.J. Melas abstained.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on October 16, 2003, by a vote of 5-1.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
