Nov

19

03

O3:48p

Pose~ate

~

Denes

2175228184

p.2

RECE~rVED

CLERK’S O~C

BEFORE

TILE

ILLINOIS

POLLUTION CONTROL

BOARD

NOV192003

WASTE MANAGEMENT OF

ILLINOIS,

COUNTY OF

)

STATE OF ILLINOIS

KANKAKEE,

ILLINOIS and EDWARD

D. SMITH,

)

Pollution

Control Bcard

KANKAKEE COUNTY STATE’S

ATTORNEY,

)

And

BYRON SANDBERG

)

)

Petitioners

)

V.

)

PCB

Nos 04-33, 04.34,

04-3

5

THE

CITY OF

KANIKAIKEE,

ILLINOIS,

TOWN AND

)

COUNTRY UTILITIES,

INC. and KAiNTKAKEE

)

REGIONAL

LANDFILL, L.L.C.

)

LIVINGSTON COUNTY, ILLINOIS

)

)

Respondents

REQUEST CONCERNING APPEARANCE

Now comes, CLAIRE A. MANNING, ofPosegate & Denes, P.C.

and,

on behalfof

Town

and Country Utilities, mc, respectfully requests

and moves that the Board or Hearing Officer

make a determination regarding the applicability ofBoard procedural rule

101.112

(35111. Adm.

Code

101.112) to my continued participation in this matter.

In support ofthis request, I offer the

following:

(1)

From May 1,

1993

through December

31,

2002, I was the Chairman ofthe Illinois

Pollution Control Board and, as such, participated in decision-making with the Board on

a

variety of cases pursuant to the Illinois

Environmental Protection Act.

I resigned from the

Board,

and state government, on December

31, 2002.

(2)

In March of 2003

1

began practicing law, as counsel to the Springfield

firm of

Posegate

& Denes, P.C.

(3)

In early October,

Town and Country Utilities, Inc. contacted mc to seek my

services, as co-counsel, along with attorney George Mueller,

in representing that

entity in the

Pri,:ted on

Rcc

c/ed

Pnpe~

in

accordance with 35111,

Adni.

Code

101.202 and

101.302(g)

---

Nov

19 03 O3:48p

Pose~ate

~ Denes

2175226184

pendiog appeals of a landfill siting application filed with

the City ofKankakee

on March

7,

2003.

Those appeals were filed with the Board on September 22, 2003

and

have been

docketed

as

PCB 04-33, 04-34 and 04-35.

(4)

My

services have been sought to generally serve as co-counsel with Mr. Mueller

but more specifically to provide input and advice on two discrete legal issues that

are

involved

in

this appeal.

Both issues involve questions of first impression for the Pollution Control Board:

(a) whether the bar after “disapproval” provision contained in Section

39.2(m) ofthe

Environmental Protection Act (Act) applies to

Pollution Control

Board

reversal of a local

jurisdiction’s approval;

and

(b) whether, pursuant to the Act,

the Illinois Solid Waste

Management Act and Illinois law and constitution, a county solid waste plan

can serve to

limit a

home rule municipality’s

authority to site

a landfill

within its jurisdiction.

(5)

Section

101.112 (b) ofthe Board’s

Procedural

rules

applies directly to my

participation before the Board.

It reads:

“No former Board Member or 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 Board employee, unless the Board and, as applicable,

all parties or

proponents in the proceeding consent in writing after disclosure ofthe participation.”

(6)

The

Board drew this language

from

similar

language found in the Code of

Professional Ethics applicable to Illinois attorneys (See Rule

1.12 ofthe Supreme Court’s Rules

ofProfessional Conduct, Article VII, entitled “Former Judges and Arbitrators”).

See

In the

Matterof Revision of the Board’s Procedural Rules:

35

Iii. Adni.

Code 101-130,

R00-20 (March

16, 2000).

(7)

Well

aware oboth

these rules,

I reviewed them prior to my

agreement to

serve

as

co-counsel

in this matter and,

in

order to

ensure that my practice before the Board

is always

in

compliance with not only Board

rules, but

also with the Supreme Court rules referenced

above,

I

PFIIIIL’t/ WI

I?ec,c!t’d PUpL’l’

In

~iccordancewith 35111.

Adm.

Code

101.202 and

101302(g)

---

Nov

19 03 O3:48p

Posegate

& Denes

2175226184

p.4

have had contact

with the

Attorney Registration and Disciplinary

Commission, the

entity

that

oversees

implementation ofthoserules.

Based upon this review,

I agreed to participate and,

in

order to participate in an upcoming status conference, filed my appearance with the Board.

(8)

Upon

my

first appearance before the Board in this

proceeding,

a status conference

with Hearing Officer Bradley Halloran on

October 6,

2003, my prior position with the Board

was

fully disclosed.

I advised all parties to this proceeding

that,

since these cases were filed

after I had left the Board,

I did not believe that Section

101.112 ofthe Board’s procedural rules

was implicated.

When one ofthe parties raised

the

earlier City of

Kankakee

siting appeal

(docketed as PCB

03-31, 03-33,and

03-35),

I indicated that

this proceeding was distinct from the

earlier one, in that it was based upon a different application

and a

separate set of

hearings

before

•the City of

Kankakee.

Moreover, I also explained, that

my

participation in those cases was not

“substantial” as I did not participate in

any

deliberations or decision-making concerning

any

of

the substantive issues facing the Board in that matter.

(9)

Subsequent to that status conference, on October 17, 2003, I received a letter from

Donald J. Moran, counsel for Waste Management, indicating

his position that Section

101.112

ofthe

Board’s procedural rules required that the parties

and

Board consent to my appearance in

this matter.

See

Attachment A.

(10)

On October 23, 2003,

1 responded to

Mr. Moran in a letter, which I addressed to

all parties, and included Mr. Moran’s

letter to inc.

My response indicated that while

11 did not

agree with Mr. Moran that Section

101.112

(b) required consent ofthe

parties~nd

the Board for

my participation in

PCB

04,

33,

04, 34

and 04,

35,

in

order to avoid even the appearance of

impropriety, asked

for the parties’ consent to

my

participation.

See

Attachment B.

Prink’d

(In

Rccyclet Piper

Lu accordance with 35

III.

Adni.

Code

101.202 and

1)1.302(g)

---

Nov

18 03 O3:43p

Posegate

~ Denes

2175226184

p.5

(it)

At

or

near that verysame time, the Board issued

an order in

People oft/ic State of

Illinois

v.

Skokie

Valley

Asphalt

Co.,

Inc.,

PCB

96-98

(October

16, 2003) that disqualified

former

Board Attorney Assistant Joel Sternstein,

now

an AssistantAttorney General, from

participating before the Board in that matter,

(12)

On October 31, 2003, received

a letter from Ed Smith, the State’s Attorney of

Kankakee

County, which declared that, based upon his reading of the Board’s order

in

Skokie

Valley,

“the existing state of the law prohibits you

from representing Town

& Country,

and

the

issue of“consent” ofthe parties

is

largely

(ifnot totally) irrelevant.”

See

Attachment

6’.

(13)

The Smith letter

has presented the parties to this proceeding, particularly Town

and

Country, witha quagmire that needs Board interpretation regarding the application ofRule

101.112 (b) to these circumstances.

(14)

While

I

agree

withEd Smith that the Board’s decision in

Skokie

Valley

suggests

thatRule 101.112 (b) is implicated whenever a former Board employee ormember

appears in a

proceeding that had beenpending

while he

or she was at the Board,

I do not agree that

Skokie

Valley

applies to disqualifyme in this matter.

Further, I fully appreciate theBoard’s decision in

Skokie

Valley

arid

I had, as a matter of personal circumstance, already determined that I

would

NOT appear in anyproceeding thathadbeenpending while I was at the Board.

(15)

Rule 101.112(b), however, is based upon Rule 112 of the Supreme Court Rules

of Professional Conduct, which rules

are

exclusively applied, by the courts, to the practice of

law in Illinois. These rules, by their language, are only implicatedwhen there i’s a conflict

because a former judge, member or attorney-employee participated in the

proceeding while it

waspending in thejudicial forum at the time he or she worked there. The basis for this rule is

Pr/ptIedwi

RccycleilPaper

In

accordance

with

35

LII.

Adrn. Cide

101.202 and

1O1.3O2(g)

---

Nov

19 03 O3:49p

Posegate

~ Denes

2175226184

that, because it is the

same matter, there is an identifiable conflict, because it’s

the

very same

proceeding,

and that conflict requires disclosure and consent.

(16)

There

is no

such conflict here as this

is a new and

distinct proceeding, an entirely

different docket, based

upon a separate application,

a separate local

government hearing, a new

appeal

and with new issued, novel issues, not applicable to the earlier proceeding, which I have

been hired to address.

(17)

However, the Smith letter has stymied the issue of my participation in this

proceeding.

Because such a broad reading of

Skokie

Valley

might serve to unnecessarily limit

my participation,

and

thatofother former employees andmembers of the Board, from acting as

counsel in a Board proceeding, in away that is neither contemplatedby the Board’s procedural

rules or

those of the Supreme Court,

I have filed this request.

(18)

Since there is, quite often, a similarity of issues and identity of parties in the

practice of law, and especially so in a specialized practice, the Board should exercise great care

in

its interpretation of Rule 101.112 (b).

Specifically, to interpret the rule so broadly that

it

applies, and

consent is required, whenever

there is a similarity ofissues and identify ofparties

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

of the 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 early 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 of which are relevant to

the legal issues

in this very proceeding.

P,in

iw! an

ReL re/ed Paper

In accordance with

35111.

Adm,

Code

101.202 and

It)

1.302(g)

---

Nov

19 03 O3:49p

Posegate

& Denes

2175226184

p.7~

(19)

In

its rather recent review and revision of the. Board’s procedural rules, the Board

contemplated a more conservative approach:

requiring a six month

bar

which would completely

prohibit former Board members

and

employees

from

participating before the Board during the

first six months of separation.

While my appearance

in this matter would have qualified even

under that

more conservative approach, the Board declined to establish

such a

bar

in favor of the

approach used to govern the practice of law generally.

See

In

tile Matter

of

Revision of the

Board’s ProceduraiRules.’

35111. Adm.

Code

101-130,

R00-20 (March

16, 2000)

WHEREFORE,

I pray that, for the above-stated reasons, the Board or Hearing

Officer

forthwith make a determination regarding the applicability or non-applicability ofRule

101.112

(b) to my appearance in these docketed proceedings.

Re,~ectful1~

sub~~,

~

g

~

Claire A. Manning, Attorney

CLAIRE

A. MANNING

Posegate & Denes, P.C.

Ill

N.

Sixth Street

Springfield, Illinois

62705

(217) 522-6152

(217) 522-6184

(FAX)

claire(~posegate-denes.com

.

Printed a,,

/?ecvc/ed

Paper

Inaccoidance with

35

Ill.

1dm.

Code

101.202

and

101.302(g)

---

Nov

19 03 O3:49p

Posegate

& Denes

2175228184

p.8

BEFORE

THE ILLINOIS

POLLUTION CONTROL

BOARD

WASTE MANAGEMENT OF ILLINOIS, COUNTY

OF

KANKAKEE, ILLiNOIS and

EDWARD

D. SMITH,

KANT(AKEE

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.

LIVINGSTONCOUNTY, ILLINOIS

Respondents

AFFIDAVIT OF CLAIRE A.

MANNING

Now comes

affiant, CLAIRE A. MANNING, of Posegate & Denes, P.C. and

states that

all

ofthe

facts set forth in the preceding document, entitled

REQUEST CONCERNING

APPEARANCE,

are, to the best ofmy knowledge, true and

accurate,

Furthereth, Affiant sayeth not.

OFFICIAL

SEAL

DEBORAH

a

COOPER

t

~ t’lOTAfl’~PU~1IC. STATE

OF

IWNOIS

1

MV

COMMISSION

EXPIRES

11-2.2005

±

Prjute,

art

Recycled Paper

In accordance with 35

111.

Adni. Code

101 .202

and

101.302(g)

Petitioners

)

)

)

PCB Nos

04-33, 04-34, 04-35

)

)

)

)

Re

~ectfullysub

i

e

~

Claire A. Manning, Attorney

)

)

ss

)

State of Illinois

County of Sangamon

Subscribed and sworn to before ~

---

Nov

13 03 O3:SOp

Posegate

& Denes

2175226184

BEFORE THE ILLINOIS POLLUTIONCONTROL BOARD

WASTE MANAGEMENT OF ILLINOIS,

COUNTY OF

)

KANKAKEE,

ILLINOIS

and EDWARD

D.

SMITH,

)

KANKAKEE COUNTY STATE’S ATTORNEY,

And BYRON SANDBERG

)

)

Petitioners

)

v.

)

PCB Nos

04-33, 04-34,

04-35

THE CITY OF

KANKAKEE,

ILLINOIS,

TOWN AI\TD

)

COUNTRY UTILITIES.

INC. and KANKAKEE

)

REGIONALLANDFILL, L.L.C.

)

LIVINGSTON COUNTY,

ILLINOIS

)

)

Respondents

)

NOTICE OF FILING

PLEASE

TAKE NOTICE that

on

November 19, 2003, I caused to be filed, with Brad

Halloran, the Hearing Officer of the Illinois

Pollution Control Board, one copy of the attached

REQUEST

CONCERNING APPEARANCE,

via

fax, with appropriate copies via fax,

followed

by United States

Mail,

to

all those on the effective service

list,

as set forth in the attached

PROOF OF SERVICE. PLEASE

TAKE

NOTICE thaton this same day, I alsocaused to be

filed, with the Clerk ofthe Illinois Pollution Control Board, via overnightmail,

an original and

nine (9) copies of this 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

with appropriatec~piesvia United States Mail to

all

those

on the effective service list, as set

forth in the attached PROOF OF SERVICE.

~

Claire A.

Manning,

Attorney

Pri,,ied on

Recycte~IPapo,~

It’L

accoidunce

with 35(1!.

Adna.

Cude

101.202 and

I()

1.302(g)

---

Nov

19 03 O3:SOp

Posegate

& Denes

2175228184

AFFIDAVIT OF

SERVICE

The undersigned hereby under penalty ofpeijury under the laws of the United States of

America, certifies that on

November 19,

2003 she served

a copy of the

foregoing upon:

p. 10

DorothyM. Gunn, Clerk

Illinois Pollution Control Board

James

R. Thompson Center

100

W. Randolph, Suite 11-500

Chicago,

Illinois 60601-3218

Bradley P. Halloran, Hearing Officer

Illinois

Pollution Control Board

James R. Thompson

Center

100W. Randolph, Suite

11-500

Chicago, Illinois 60601-3218

(312)814-8917

(312) 814-3669

FAX

George Mueller

501

State Street

Ottawa, IL

61350

(815) 433-4705

(815) 433-4913

FAX

Donald J.

Moran

Pedersen& Houpt

161

North Clark Street

Suite 3100

Chicago, IL 60601-3224

(312) 261-2149

(312) 261-1149—FAX

Elizabeth S.

Harvey

Swanson, Martin & Bell

One IBM Plaza, 330 North Wabash

Suite 2900

Chicago, IL 60611

(312) 321-9100

(312) 321-0900

FAX

Edward

Smith

Kankakce County Administration Bldg

189

E.

Court St.

Kankakce,

IL

60901

(815) 937-3932 FAX

Kenneth A. Leshen

Leshen& Sliwinski

One

Dearborn Square, Suite 550

Kankakee,

IL

60901

($15) 933-3385

(815)

933-3397

FAX

Christopher Bohien

Barinann, Kramer and Bohien, P.C.

200 East Court Street, Suite 602

P.O. Box

1787

Kankakee,

IL 60901

(815) 939-1133

(815) 939-0994

FAX

L. PatrickPower

956 North Fifth Avenue

Kankakce,IL 60901

(815) 937-6937

(815) 937-0056FAX

Richard S. Porter

Charles F.

Heisten

Hinshaw& Culbertson

100 Park

Avenue

P.O. Box

1389

Rockford,

1L

61105-1389

(815) 490-4900

Byron Sandberg

109

Raub St.

Donovan,

IL

60931

~onsandberg~starb

and.net

Anjartila Durnas, Clerk

City of Kankakee

385

E.

Oak Street

Kankakee, IL

60901

(815)

933-0480

(815) 933-0482 FAX

Prink’d on

RL’eyek’(l

Pupet

In

~ccordanc~

with

35

II.

Adni.

Cudc

101.202 and

101 .302(g)

---

Nov

19 03 O3:SOp

Posegate

& Denes

2175226184

p.11’

by depositing a copy thereofenclosed in an envelope in

the

U.S. Mail at Springfield,

Illinois,

proper postage prepaid, before

the hour of5:00 p.m.

Claire

A. Manning

Posegate& Denes, P.C.

111 N.

Sixth Street

Springfield,

Illinois 62701

(217) 522-6152

(217) 522-6184

(FAX)

c1aire~posegate-denes.com

Printed

on

Recycled Paper

In

accordance

with

35

01.

Adm.

Code

101.202

and

10l.302(g)

---

Nov

19 03 O3:Slp

Posegate

& Denes

2175228184

p.12

P~TT~CHMENT

)\

PEI)I~R~EN~ft)u

11~

October

15.

2003

Donald

.1.

Moran

.\norrwy

at

Law

312.261.2149

1a.x

312.261.1149

dmoran~.pcdcr~nhoupt,co

m

Claire A.

Manning

Posegate & Denes, P.C.

ill N Sixth Street

Springfield.

IL

62705

Re:

Sandberg et a! v.

City ofKankakee et

at

PCB Nos.

04-33, 34, 35

Dear Ms. Manning:

I have received your appearance as additional counsel on behalf of respondent, Town & Country

Utilities,

Inc in

the above referenced appeal.

As you aware, this appeal

involves siting approval

for the

same facility

which was

considered by the Board while you

served as

its Chairperson.

As

such, your representation of

Town

& Country Utilities in this appeal is governed by Section

101.112 of the Board’s Procedural Rules.

Section

101.112 provides that no

former Board Member may represent

a person in a Board

proceeding “in which

he or she participated personally and substantially as a Board Member

unless the Board

and, as applicable, all parties or proponents

in the proceeding consent in writing

after disclosure ofthe participation.”

As

a Board member,

you issued two orders in the

prior

appeals,

County ofKankakee

et a!

v.

City

ofKankakee et a!,

Nos. PCB 03-31, 33. 35

(consolidated).

In the

first order, the Board accepted the petitions for reviews and consolidated

them for hearing, denied

Mr.

Sandberg~s

request for a

waiver of the appeal filing fee, and ordered

the County and Waste Management

tO

pay the

City ofKankakee the cost of preparing and

certifying the record.

County of

Kankakee et a!

v.

City ofKankakee et a!,

Nos.

PCB 03-31. 33,

35 (cons.), slip op. at 2,

4 (October 3, 2002).

In the second

order, the

Board denied the County’s

motion

(‘or expedited decision and its

motion for summary judgment.

County

of Kankakee

et

al

v.

City ofKankakee

et

a!,

Nos.

PCB 03-31,

33,

35 (eons.), slip

op. at

3

(Noy.ember 7,

2002).

The

Board

further found that the County

provided no persuasive legal authority establishing its right

to

summary

judgment,

and held that the

Board’s opinion in

American

Bottom

Conservancy

v.

Village

of Fairmont City

was

inapposite to

the

facts

of the case.

ía’.

I))M

37(1

I

12

v I

( )cl~

,l,cr

15.

2003

ii

~iiiII~~~ii

I

(:I~,1111,ll_(IaI;0I:l’24J

I

~

:ll..~~i~tililIlIll

~

7’,x:lj~t~4I

(~~J~I~

~

I1I4I~1ld~t.~I

~

---

Nov

19 03 O3:Slp

Posegate

& Denes

.2175226184

p.13

PEDERSEN~IIOUPI7

October 15,2003

Page 2

Based upon these facts, it appears

that you

personally and

substantially participated as a Board

member

in the

prior appeal ofthe

siting approval for the Town & Country proposed landfill.

The

issues in the prior appeal are the same issues that have been raised in this appeal, namely, the

sufficiency of notice, fundamental fairness, and

compliance with statutory

criteria

two

and

eight.

Accordingly, it would

appear that Section

101.112 requires the written consent ofthe

Board and

the

parties in this appeal to your representation ofTown & Country

Utiiiti~s.

I am confident that you have considered Section

10 1.112 and are

prepared to comply with its

requirements.

I appreciate your prompt consideration and look forward to hearing from you

at

your earliest convenience.

~ery

truly

yours,

Donald

J.

ran

DJM:vlk

UJM

37(~I02vI

O~~tahe~

IS,

20(13

---

Nov

19 03 03:Slp

Pose~ate & Denes

2175226184

ATTACHMET\IT

B

l~(.JS~C~\l’E

& DENES,

11.C.

At

~

~

.t

~

III

N~

‘~‘‘‘

~

8uiI~

2~~)

~.(J.

l3~)X

338

Sprit1~fie(d.II.

(~,2.7U5.O338

C.iut~t

I

(.w~cti

(‘~~1.ltL’

T~L~phc~nt~

(217) 5::.~,

J1u\L~

Nt1.~uDcncs

F~us~m

ik~

(217)

322.,,

C1..’&ir~.~

A. M.~u~iI~g

Ot

Cuutiscl

October

2.3, 1003

Donald

S.

Moran

Pedersen &

1-loupt

161

N’orth Clark

Street, Suite 3100

Chicago,

Illinois 6060 1-3242

Re:

Sandberg

et. al.

v. City of Kankakee

cc.

al., PCB. Nos.

04-33.

341

35.

Dear

Mr. Moran:

I have received your correspondence.

dated October

15, concerning my participation

in the

above-referenced

matter.

As

you suggested,

I am well

aware

of Section

101.112 of the

Board’s

procedural

rules

that prohibits me from representing a person in

any

Board

proceeding in which

I

participated “personally

and substantially”

while at the

Board

---

unless all

parties and

the Board

consent.

However,

I

do

not

believe

that

Section

101.112

of the

Board’s

procedural

rules

restricts

my

participation

in

this

matter for

two

very

important reasons.

First,

the

appeal

that

was

pending

during my

final days

at

the Pollution

Control Board (PCB 03-3 1,

33

and

35), which

is the subject

of your

objection,

was

an

entirely different

Board proceeding

than

the

one that

is

pending now.

The current

matter

involves

a review of a second

siting decision made by the City of Kari.kakee,

based upon a second hearing and an

entirely different,

separate record.

Both the

hearing and

the

City’s

decision

are

separate

and

distinct

&orri

that

which

was

the

subject of the

appeal

to

the

Board

in

PCB

03-3

1,

33

and

35.

While

you

argue

a

commonality

of

issues

in

these

two

proceedings,

the

actual

legal

issues

facing the

Board

are

distinct

from

those

they

faced

in

the

prior

landfill

siting decision and

appeal.

The notice

issues

are

distinct;

the

fundamental

fairness

issues

are

different

—

based

upon

an

entirely

different

hearing;

the

criteria issues

are

distinct

—

based

upon

art

entirely different

record.

Second

and,

even

more

to

the

point.

I

did

not

substantively

participate.in the

prior

proceeding

with

which

you

argue

the commonality.

As

you

know, the

PCB 03-3±,33

and

35 cases were

tiled

and

docketed

in

late

2002.

Since

I

was

aware

that

I

would

be

departing

from

the

Board

prior to

the

Board’s decision date,

I

purposctiitly

did not participate in any

substantial

way

in

this

appeal.

My

major role

was to

assign

this

matter to

a Board member who would

lead the Board in

its

decision-making.

The

two

initial

orders

that

you

cite,

which

I

did

author,

were

simple

administrative,

case

fnatlagcment

orders

-•

intended

to

move

this

case

along

expeditiously.

us

ICqUI

red

by

law.

Even

the

summary judgment order,

which

dijniecl

summary judgment, wu~

FlOt

---

Nov

19 03 03:Slp

Pose~ate & Denes

2175226184

p.l5

a

‘‘substantive’’ decision

ot’

the

Board

—

it

simply denied summary judgment

bCcuUSC

4ueStiOrIs

o

t’

fact

existed

on

the

t~n’tdarnentalfairness

issues

that were

raised

concerning

the

sIting

hearing.

Rather,

the

Board

did

not

address wtv

substantive issues, including those isSuCs that

were ~

subjcct of

the

summary judgment motion,

until

its

dccision on

January 8,

2003

—

a d~cisIort

that

took place af~cr

my

departure

from

the

Board arid in

which

I did not participate.

Further,

I

did

not

participate

in

any

deliberations that

led

to

the

Board’s

January

8

de~jsio~,

which

is

now

on

appeal

to

the Third

District

Appellate

Court.

A

phone

call

to

the

attorney

assistant

who, on

behalf of Board Member Girard,

assisted

in

the drafting of Board’s decision ir~

PCB

03-31,

33

and

35,

has

confirmed

my

tack

of

substantive

participation

in

that

prior

proceeding.

While

that

attorney

is

now

in private

practice,

he

was

my

attorney

assistant

at

the

time of the prior proceeding but. since was

leaving

the

Board, asked

him

to work

with

Board

Member

Girard

in

drafting the

Board’s decision.

I advised

him,

and

the rest of the

Board

and

staff,

that

I would

not

be

participating

in the

decision

in

any way

—

and

I

did

not.

For

those

reasons,

I

continue

to

believe

that

my

participation

in

the

instant

matter

does

not

require

the

invocation ofRule

101.112.

t”lonetheless,

so

that

the

question

of

my

participation

will

not

in

any

way

unnecessarily

jeopardize

the

current

Board

proceeding,

and

to

avoid

any

appearance

of impropriety,

I

will

agree

to

participate

only

with

the

wrItten

consent

of the

parties

and

the

Board.

Accordingly,

I

have

drafted

the

attached

letter

to

all

parties

—

and

~vi11

enclose

the

instant

letter.

Given

the

assurances

presented in

this letter,

which

I will be

happy to set forth in an affidavit,

it

is my hope

that you

and

the other

parties

will

grant consent

for my participation.

If I hear affirmatively from

all parties,

I will file the necessary paperwork

to asc~rtainthe Board’s consent.

I look

forward to

hearing from you.

Y

s

very truly,

~

Claire A. Manning

---

Nov

19 03 O3:52p

Posegate

&

flenes

2175226184

p.lG

A~TACHME~T

C

STATE’S ATTORNEY

COUNTY OF

KANKAKEE

450 EAST COURT

STREET

•

KANKAKEE,

ILUNOIS

60901-3992

(815) 937-2930

FAX

(815) 937-3932

October

28,

2003

Ms.

Claire A.

Manning

Posegate & Denes,

P.C.

Attorneys at Law

P111

N. 6th

Street, Suite200

P.O.

Box 338

Springfield,

IL

62705-0338

RE:

Sartdberg

et.

at.

v.

City of Kankakee et.

al., PCB

Nos. 04-33, 34,

35

Dear Ms. Manning:

Thank you for

your

letter and

attachments of October

23,

2003

concerning the

above-

mentioned

matter.

in

that

correspondence,

you

had

indicated

that

you

would

only

participate

in

this

matter with

the

“consent”

of

all

parties

of

record.

White

I

have

no

doubt

that

during

your

career

as

a

lawyer

and

government

official

you

have

earned

great respect for your integrity and ethical

conduct,

I

do

not believe we need to even get

to

the

issue

of

the

‘consent”

of

all

parties

of

record

to

your

representation

of

the

Respondent Town

& Country Utilities in this

matter.

Rather,

I

think

the

issue

at

hand

has

already

been

decided

by

the

Illinois

Pollution

Control Board

in its

October

16,

2003 decision

in the

case of The People of the StatQ~

IWnois

v.

Skokie

Valley Asphalt

Company~

Inc., et

al,

(P08 matter 96-98).

If you

have

not

already

reviewed that

decision,

I

would

commend you

to

a

review of that

ruling at

this

time.

As

I

read

the decision,

in

that case,

the Respondents

moved

to

recuse one of

the

attorneys

that

were

representing

the

Complainant

in

that

matter

(Mr.

Joel

Sternstein).

The

basis

for

the

motion

to

recuse

Mr;

Sternsteirt

was

that

he

had

previously

served

as

an

assistant

to

Pollution Control

Board

Member

Melas

during

the

pendancy

of

this

case.

The

Complafinant

countered

the

Respondents’

motion

to

disqualify Sternstein

from

participating

in

the

case

by

raising

the

fact

that:

(1)

no

fact

specific

reference

was

made

to

any matters

Sternstein

worked

on which would

provide

a basis

for

an

inference that

Sternstein

personally

and

substantially

participated

in

this

case,

and

(2)

this case was never assigned

to

Mr.

Sternstein’s superior (Board

Member

EDWARD

I).

SMITI-!

Slate’s .ItWrneV

---

Nov

18 03 03:52p

Pose~ate

& Denes

2175228184

P. 17

Melas) for rendering a decision by Mr. Melas during the time Mr. Sternstein worked far

him and the Board.

However, as you

will note by the Pollution Control Board’s discussion

of this matter

although the case was never assigned

to

Board Member Melas

during

Sternstein’s

tenure, the docket reveals the Board

issued

two

orders

in the case during that time

period.

As the Pollution Control Board

also notes, a review of the Board’s meeting

minutes concerning those

two

decisions concerned the Board Member Melas voted on

each of those orders. The Board went on to note that while Mr. Sternatein asserted

in

his

affidavit

that he had

never

drafted any opinions or orders

or had any

other

substantive involvement in the Skokie Valley Asphalt matter during

his tenure with the

Board, the Board went on

to note that attorney assistants play an important role

ri

preparing Board Members for each meeting (and

in

turn,

for each

vote).

Further,

although attorney assistants do not cast votes, as the Pollution Control Board aptly

notes,

it is presumed that

all Board Members reach welt-decisions on each case they

vote on, are adequately prepared to make such decisions, and accordingly, rely upon

their attorney assistants for edification and information in this regard.

I would then respectfuUy submit that

if, under the facts presented in the Skokie Valley

Asphalt case,

the Board found

that Attorney Sternstein was,

as a

matter

of law,

disqualified from subsequent representation of one of the parties in essentially the same

matter, then under the facts as outlined to me in the various correspondence on which

I

have been copied over the course of the past several weeks, the existing state of the

law prohibits you from representing Town & Country, and the issue of “consent” of the

parties

is largely (if not totally) irrelevant.

In summary, as the Chief Law Enforcement Officer for the County,

I feel the law in

all

such cases should be strictly adhered to, and the decision of the Pollution Control Board

in

the Skokie Valley case noted above

is dispositive on this issue without even going to

the

issue of the

matter of “consent” of the

parties.

Sincerely,

EdS

~th

State’s Attorney

Kankakee County

II

~(yb(J\I1

r,irI

It,~-i

~t,r1 Itu

---

Nov

19 03 O3:48p

Pose~ate & Denes

2175226184

p.

1

FOSEGATE & DENES, P.C.

Altorneys atLaw

111 North

6U1

Street, Suite

200

P.O.

Box 338

Springfield,

IL

62705-0338

Carol Hansen Posegate

Telephone (217) 522-6152

Jane Nolan Denes

Facsimile

(217) 522-6184

~

~

1l~t~5k

~

Claire A. Manning

~

~

~

-

‘f~

‘~1

C~

/

3

-

.

FAX TRANSMSSION

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DATE:

p

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TO:

________________________________

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The

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this

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The information

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