1. OFFICIAL SEALDEBORAH D. COOPER
      2. BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
      3. AFFIDAVIT OF SERVICE
BEFORE
THE
ILLINOIS POLLUTION CONTROL BOA~CE~VED
CT
~R~~YS
OFFICE
NUV
2
02003
WASTE MANAGEMENT OF ILLINOIS, COUNTY OF
)
KANKAKEE, ILLINOIS and
EDWARD D. SMITH,
)
STAFE OF ILUNOIS
KANKAKEE COUNTY STATE’S ATTORNEY,
)
Pollution
Control Board
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
REQUEST CONCERNING APPEARANCE
Now comes, CLAIRE A. MANNING, ofPosegate & Denes, P.C. and, on behalf ofTown
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
(35
Ill. 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 of the Illinois
Pollution Control Board and, as such, participated in decision-making with the Board on a
variety ofcases pursuant to
the Illinois Environmental Protection Act.
I resigned from the
Board, and state government, on December 31, 2002.
(2)
In March of2003
I began practicing law,
as counsel to the Springfield firm of
Posegate &
Denes, P..C.
(3)
In early October,
Town and Country Utilities, Inc. contacted me to
seek my
services, as co-counsel, along with attorney George Mueller, in representing that entity in the
Pri,:ted on
Recycled
Paper
In accordance
with
35
II!.
Adm.
Code
101.202
and 101.302(g)
pending appeals of a landfill siting application filed with
the City of Kankakee 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) of the
Environmental Protection Act (Act)
applies to Pollution Control Board reversal ofa 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 of the 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
Matter of Revision ofthe Board’s Procedural Rules:
35111. Adm.
Code 101-130,
R00-20 (March
16, 2000).
(7)
Well aware ofboth 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
Printed on
RecycledPaper
In accordance with
35
III.
Adrn.
Code
101.202 and
101.302(g)
have had contact with the Attorney Registration and Disciplinary Commission, the entity that
oversees implementation of those rules.
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 ofKankakee 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 ofhearings before
the City ofKankakee.
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
AttachmentA.
(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
me.
My response indicated that while I did not
agree with Mr. Moran that Section
101.112
(b) required consent ofthe parties and the Board for
my participation in PCB 04, 33, 04, 34 and 04,
35,
in order to avoid even the appearance of
impropriety,
I asked for the parties’ consent to
my participation.
See
Attachment B.
Pri,:ted on
Recycled Paper
In accordance with 35
III. Adrn.
Code
101.202 and
IOI.302(g)
(11)
At or near that very same time, the Board issued an order in
People of the State of
•
Illinois
v.
Slcokie
Valley Asphalt Co., Inc.,
PCB 96-98 (October
16,
2003) that disqualified
former Board Attorney Assistant Joel
Sternstein, now an Assistant Attorney General, from
participating before the Board in that matter.
(12)
On October 31, 2003,
I received a letter from Ed Smith, the State’s Attorney of
Kankakee County, which declared that, based upon his reading ofthe Board’s order in
Skokie
Valley,
“the existing state ofthe law prohibits you
from representing Town & Country, and the
issue of“consent” ofthe parties
is largely (ifnot totally) irrelevant.”
See
Attachment C.
(13)
The Smith letter has presented the parties to
this proceeding, particularly Town
and
Country, with a quagmire that needs Board interpretation regarding the application of Rule
101.112 (b) to these circumstances.
(14)
While I agree with Ed Smith that the Board’s decision in
Skokie
Valley
suggests
that Rule
101.112 (b) is implicated whenever a former Board employee or member appears in a
proceeding that had been pending while he or she was at the Board, I do not agree that
Skokie
Valley
applies to
disqualify me in this matter.
Further, I fully appreciate the Board’s decision in
Skokie Valley
and I had,
as a matter ofpersonal circumstance, already determined that I would
NOT appear in any proceeding that had been pending while I was at the Board.
(15)
Rule 101.112
(b), however, is based upon Rule
112 ofthe Supreme Court Rules
ofProfessional Conduct, which rules
are exclusively applied, by the courts,
to
the practice of
law in
Illinois.
These rules, by their language, are only implicated when there
is a conflict
because a formerjudge, member or attorney-employee participated in the proceeding while it
was pending
in the judicial
forum at the time
he or she worked there.
The basis for this rule is
Printed on Recycled Paper
In accordance
with 35
111.
Adm. Code
101.202 and 101.302(g)
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 issues, 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
ofSkokie
Valley
might
serve to unnecessarily limit
my participation, and that of other former employees and members ofthe Board,
from acting as
counsel in a Board proceeding, in a way that is neither contemplated by the Board’s procedural
rules or those ofthe Supreme Court, I have filed this request.
(18)
Since there is, quite often, a similarity ofissues and identity ofparties in the
practice oflaw,
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 identify ofparties
would unduly restrict me,
and others, in the proper and appropriate practice oflaw. As
the
Board knows, the environmental law community has a myriad oflawyers 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 ofwhich are relevant
to the legal
issues in this very proceeding.
Printed on
Recycled Paper
In accordance with
35
III.
Adm. Code
101.202 and
101.302(g)
(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 ofseparation.
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 ofthe
approach used to
govern the practice oflaw generally.
See
In the Matter ofRevision ofthe
Board’s Procedural Rules:
35
111.
Adm. Code 101-130,
R00-20 (March 16,
2000)
•
WREREFORE, I pray that, forthe above-statedreasons, the Board or Hearing Officer
forthwith make a determination regarding the applicability ornon-applicability ofRule 101.112
(b) to
my appearance in these docketed proceedings.
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
•
Printed on
Recycled Paper
In accordance with 35111.
Adm.
Code
101.202 and
10 1.302(g)
Claire A. Manning, Attorney
BEFORE THE
ILLINOIS POLLUTION CONTROL
BQ~~DCEIVED
cU’:RK’S
OFFICE
WASTE MANAGEMENT OF ILLINOIS, COUNTY OF
)
KANKAKEE, ILLINOIS and EDWARD D. SMITH,
)
KANKAKEE COUNTY STATE’S ATTORNEY,
)
And BYRON SANDBERG
)
•
Petitioners
v.
THE CITY OF KANIKAKEE, ILLINOIS, TOWN AND
COUNTRY UTILITIES, INC. and KANKAKEE
REGIONAL LANDFILL, L.L.C.
LIVINGSTON COUNTY, ILLINOIS
Respondents
NUV
2
0
2003
STATE
OF ILLINOIS
)
Pollution
Control Board
)
)
)
PCB Nos 04-33, 04-34, 04-35
)
)
)
)
)
•
AFFIDAVIT
OF CLAIRE A. MANNING
Now comes affiant, CLAIRE A. MANNiNG,
of
Posegate & Denes, P.C. and states that
all of the facts set forth in the preceding document,
entitled REQUEST CONCERNING
APPEARANCE, are, to the best ofmy knowledge, true and
accurate.
Furthereth, Affiant sayeth not.
~ctfullY~ii~
Claire A. Manning, Attorney
State ofIllinois
)
)ss
County of Sangamon
)
Subscribed and
sworn to before me this
OFFICIAL
SEAL
DEBORAH
D. COOPER
NOTARY
PUBLIC,
STATE
OF
ILLINOIS
.~.
~
MY
COMMISSION
EXPIRES
fl-2.2OO5~
Printed on
Recycled Paper
In accordance with 35
111. Mm.
Code
101.202 and 101.302(g)
BEFORE
THE ILLINOIS
POLLUTION CONTROL BOARD
WASTE MANAGEMENT OF ILLINOIS, COUNTY OF
)
C!
~
OPFICE
KANKAKEE, ILLiNOIS and EDWARD D. SMITH,
)
KANKAKEE COUNTY STATE’S
ATTORNEY,
)
~
2
0
2003
And BYRON SANDBERG
)
STATE OF ILLINOIS
)
Pollution
Control Board
Petitioners
)
v.
)
)
PCB Nos 04-33, 04-34, 04-35
THE CITY OF
KANKAKEIE, 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 November 19, 2003, I caused to
be filed, with Brad
Halloran, the Hearing Officer ofthe Illinois Pollution Control Board, one copy ofthe 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 that on this same day,
I also caused to be
filed, with the Clerk ofthe Illinois Pollution Control Board, via overnight mail, 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
with
appropriate copies via United States Mail to all those on the effective service list, as set
forth in the attached PROOF OF SERVICE.
Claire A. Manning, Attorney
Printed
on
Recycled Paper
Iii accordance
with 35
Ill.
Adm. Code
101.202 and 101.302(g)
AFFIDAVIT OF SERVICE
The
undersigned hereby under penalty of perjury under the laws ofthe United States of
America, certifies that on November 19, 2003
she served a copy ofthe foregoing upon:
Dorothy M.
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
100 W. 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
OneIBMPlaza, 330 NorthWabash
Suite 2900
Chicago,
IL 60611
(312)
321-9100
(312) 321-0900
FAX
Edward Smith
Kankakee County Administration Bldg
189 E. Court St.
Kankakee, IL 60901
(815)
937-3932FAX
Kenneth A. Leshen
Leshen & Sliwinski
One Dearborn Square,
Suite
550
Kankakee, IL
60901
(815)
933-3385
(815)
933-3397FAX
Christopher Bohlen
Barmann, Kramer and Bohien, P.C.
200East Court Street, Suite 602
P.O. Box 1787
Kankakee, IL 60901
(815)
939-1133
(815)
939-0994 FAX
L. PatrickPower
956
North Fifth Avenue
Kankakee, IL
60901
(815)
937-6937
(815)
937-0056 FAX
Richard S~
Porter
Charles F. Heisten
Hinshaw
& Culbertson
100 ParkAvenue
P.O.
Box 1389
Rockford, IL 61105-1389
(815)
490-4900
Byron Sandberg
109 Raub St.
Donovan, IL
60931
byronsandberg(~starband.net
Anjanita Dumas, Clerk
City ofKankakee
385 E. Oak Street
Kankakee, IL
60901
(815) 933-0480
(815)
933-0482
FAX
Printed on
Recycled Paper
In accordance with 35
111.
Adm, Code
101.202 and 101.302(g)
by depositing a copy thereofenclosed in an envelope
in the U.S. Mail at Springfield, Illinois,
proper postage prepaid, before the hour of 5:00 p.m.
Claire A. Manning
Posegate & Denes, P.C.
111 N. Sixth Street
Springfield, Illinois
62701
(217) 522-6152
(217) 522-6184
(FAX)
claire@posegate-denes.com
Printed on
Recycled Paper
En
accordance with
35
Iii. Adm. Code
101.202 and 101.302(g)
Lo~
tt’~’~)
ATTACHMENT
A
PE
DEI~S
E
~
lou
PT
October
1 5. 2003
Don~~ld
J. Moran
Attorney
at Law
312.261.2149
Fax
312.261.1149
dmoran~pedcrsenhoupt.coin
Claire
A. Manning
Posegate& Denes. P.C.
Ill
N. Sixth Street
Springfield,
IL
62705
Re:
Suzndberg et a! v.
city
ofKankakee et a!
FCB Nos.
04-33, 34, 35
Dear
Ms. Manning:
I have received your appearance as additional counsel on behalfof 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 ofTown &
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 al
v.
City ofKankakee et al,
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 ofthe appeal filing fee, and
ordered
the County and
Waste Management to pay the City ofKankakee the cost ofpreparing and
certifying the record.
County of Kankakee et al v.
City of Kankakee et al,
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 for expedited decision and its motion for summary judgment.
County of Kankakee
ef
al
v.
City oJKankakee et al,
Nos.
PCB 03-31,33,35
(cons.), slip op.
at
3
(November 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 P’airmoni
City
was inapposite
to the facts of the case.
Id.
I)JM
37( 102
vI
I
)ctuhcr
15.
2003
I
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I
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Ci11~i4IIii
PEDERSEN~HOUPT
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 of the 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 of the Board and
the parties
in this appeal
to your representation ofTown & Country Utilities.
I am
confident that youhave considered Section 101.112
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
DiM
)7~I02vi
Ocwber
15,
201)3
•
ATTACHMENT
B
1~OSlG,yl~E
&
DENES, P.C.
i\tt
ii
‘y~
.it
L.~w
III
N,
o” Street. Suite
21)0
r.o.
)3ox
333
•
Sprin1ficld, It.
62~05-0338
C.~rol
I I.iciscti
I’o.seg~tc
Telephone
(217) 5:~_~,
J.me Nol.t’i
Dene’s
F.iesimik~
(217) ~
C1~~ire
A.
M.~nning
O~
Counsel
October 23,
2003
Donald J. Moran
Pedersen
& f~Ioupt
•
161
North Clark Street, Suite
3100
Chicago,
Illinois 6060 1-3242
Re:
Saridberg et.
at.
v. City ofKankakee et. at., PCB, Nos. 04-33, 34, 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 03-31,
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 Karikakee,
based
upon a second
hearing and
an entirely different,
separate
record. Both the hearing and the
City’s
decision are
separate
and
distinct
from
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
thndamental
fairness
issues are different
—
based
upon
an
entirely different
hearing;
the criteria
issues are distinct
—
based upon an 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
03-31,
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
purposefully did not participate
in any substantial way in thts
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
management
orders
—
intended
to
move
this
case
along
expeditiously.
as
required by
law.
Even the summary judgment order,
which
Ilwlwcl
summary judgment,
was not
f.
a “substantive” deciswii at’ the Board
—
it simply denied sutuniary judgment
becausc
questions at’
fact existed
on
the
fundamental
fairness
issues
that
were
raised
ncerning the
s~unghearirt~.
Rather,
the
Board
did
not
address
~jny
substantive
issues, including
those
issues
that
wcrc
the
subject at’ the summary judgment motion,
until
its decision
on
January 8,
2003
—
a decision that
took place atler my departure
(‘torn the Board and
in
which
I did not
participate.
Further,
I
did
not
participate
in
any
deliberations
that
led
to
the
Board’s
January
8
decision,
which
is
now
on
appeal
to
the
Third
District
Appellate
Court.
A
phone
call
to
the
attorney
assistant who, on behalfof Board
Member Girard,
assisted
in the drafting of Board’s decision in
PCB
03-31,
33
and
35,
has
confirmed
my
lack
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 I was leaving
the Board,
I 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.
Nonetheless,
so
that
the
question
of
my
participation
will
not
in
arty
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
will enclose
the
instant
letter.
Given
the
assurances presented in this letter, which
1 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. IfI hear affirmatively from
all parties,
I will file the necessary papen.vork to
ascertain the Board’s consent.
I look forward to
hearing from you.
Y
sverytruly,,,
~
g. ~
Claire A. Manning
•
(‘.I~
~.)(
,,,,‘..
ATTACHMEt’~T
C
STATE’S
ATTORNEY
COUNTY OF KANKAKEE
450 EAST COURT STREET
•
KANKAKEE,
ILLINOIS 60901-3992
•
(815)
937-2930
FAX
•
(815) 937-3932
October 28,
2003
Ms.
Claire A. Manning
Posegate & Denes, P.C.
Attorneys at Law
111
N. 6th Street, Suite 200
P.O.
Box 338
Springfield,
IL
62705-0338
RE:
Sandberg
et. al. v.
City of Kankakee et.
at.,
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.
While
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
State
of
Illinois
v.
Skokie Valley Asphalt Company,
Inc.,
et at,
(PCB 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.
Sternstein
was
that
he
had
previously
served
as an
assistant
to
Pollution
Control
Board
Member
Melas
during the
pendancy
of
this
case.
The
Complainant
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 0. SM~TU
State
‘s .4ztarney
Melas)
for rendering
a decision
by
Mr.
Melas
during
the time
Mr.
Sternsteifl worked for
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
Sternsteiri’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.
Sternstein
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
in
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
well-decisions
on
each
case
they
vote
on,
are
adequately
prepared
to
make
such
decisions,
and
accordingly,
rely
upon
their attorney assistants for edification and inforrrtation•in this regard.
I
would
then
respectfully
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
~~‘:cjtiii
tybd\J.nidllflrn
JI1n nq

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