In searching for the right adjectives to describe last night’s city council meeting I found this note on thesaurus.com:
ingenuous means ‘naïve, easily deceived, unsuspecting; foolish’ – and disingenuous means ‘calculating, deceptive’
I’ve been scratching my head ever since. Which is it? Is the DeKalb city council so naive, easily deceived and unsuspectingly foolish that they can’t see or smell the forest fire burning through the trees? Or is it worse.
The mayor and council’s attempt to poo-poo what has been a pattern of, at best, extremely poor judgement and, at worst, borderline criminal behavior is disgusting.
Folks, it doesn’t get any plainer (or uglier) than this:
Third ward alderman, Victor Wogen with assistance from the appointed and paid city administration, was paid some $53,000 for work done in the downtown revitalization without the public’s knowledge. The ‘policy’ employed was the City Manager’s $20,000 discretionary fund account. Such a fund account is needed because emergency repairs cannot await first and second readings and approval by city council. But the splitting of the hairs between the lines of the City Manager’s $20,000 policy used to hide Wogen’s deal from the public.
Of the six under $20,000 jobs Wogen’s now defunct company, Masonry Works LLC, received from the City of DeKalb, three were for work directly related to 231 E. Lincoln Hwy. Two-thirty-one formerly occupied what is now the pending Pedestrian Walkway. On June 27, 2008 two invoices, one for $12,000 and another for $19,500 ($31,500 total), were submitted by Wogen’s company and they were paid (on the same check) on July 11, 2008. One of the invoices was for repairs to 229 E. Lincoln. The other was for 235 E. Lincoln repairs. Then on Dec. 5, 2008 the City was billed $5,500 for repairs to the east wall of 231 E. Lincoln. City Manager, Mark Biernacki, explained at a related press conference that the east wall of 231 was really 235 East Lincoln.
To attempt to suggest that the intent of the City Manager $20,000 Rule was not manipulated is an insult to the public’s intelligence.
Was the law broken? The in-house legal department of our self-insured City says, “No.” However, state statutes, (65 ILCS 5/4‑8‑6), indicate otherwise.
Sec. 4‑8‑6. (a) No officer or employee elected or appointed under this article shall be interested, directly or indirectly, in his own name or in the name of any other person, association, trust or corporation, in any contract for work or materials, or profits thereof, or services to be furnished or performed for the municipality or for any person operating a public utility wholly or partly within the territorial limits of the municipality.
There doesn’t appear to be any wiggle room, or even a Home Rule exemption, in the language above. Elected officials in a municipality can’t do business in that municipality, in any contract for work, unless…
(b) However, any elected or appointed member of the governing body may provide materials, merchandise, property, services or labor, if:
A. the contract is with a person, firm, partnership, association, corporation, or cooperative association in which such interested member of the governing body of the municipality has less than a 7 1/2% share in the ownership; and
B. such interested member publicly discloses the nature and extent of his interest prior to or during deliberations concerning the proposed award of the contract; and
C. such interested member abstains from voting on the award of the contract, though he shall be considered present for the purposes of establishing a quorum; and
D. such contract is approved by a majority vote of those members presently holding office; and
E. the contract is awarded after sealed bids to the lowest responsible bidder if the amount of the contract exceeds $1500, or awarded without bidding if the amount of the contract is less than $1500; and
F. the award of the contract would not cause the aggregate amount of all such contracts so awarded to the same person, firm, association, partnership, corporation, or cooperative association in the same fiscal year to exceed $25,000.
So, in other words, Alderman Wogen: owned too much of Masonry Works, LLC; failed to publicly disclose the nature and extent of his interest; may not have abstained from voting since budget line items attached to the work he performed are approved TIF expenditures for a specific downtown revitalization plan (that he voted to approve); the amount of the contract exceeded $1500 and therefore should have been awarded after sealed bids to the lowest responsible bidder; and; the aggregate total spent with Alderman Wogen’s Masonry Works, LLC exceeded $25,000 in the same fiscal year.
First ward alderman Bertrand Simpson, who states that he does not think taxpayer’s pay him and the other aldermen near enough for their efforts, also thinks everything is fine with the above.
Oh, and if an alderman violates this Section of 65 ILCS 5/4‑8‑6, s/he is guilty of a Class 4 felony and in addition thereto any office held by such person so convicted shall become vacant and shall be so declared as part of the judgment of the court.
Much to the chagrin of Richard Nixon, George Ryan and Rod Blagojevich “all with the best intentions” does not justify breaking the law.
This case and this community needs judgment from the court. All who would interfere with that course of action should be removed from their positions subject to the judgment rendered.
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39 Comments
One attached invoice shows Victor Wogen as the project manager. I will assume that is what was meant by attached when asked for Firms name,contact person, address etc. The Sycamore Rd. address is the UPS store.
In addition I think it is in the Municipal Code #54 where it states;
Employ year round staff located at the business within the county.
I also think it states under the city manger section that the under $20,00.00 amount gives him the authority to enter into agreements directly without council approval, provided the contracts pertain to work previously authorized and/or within the approved annual budget.
The attachments included the prevailing wage ordinance, the legal notice for the prevailing wage ordinance, and three invoices for work done at First & Lincoln, which included the address of Masonry Works.
3230 Sycamore Road, Suite 111, is the UPS Store.
Guess I'll have to try to look up the "actual physical office" rule.
Hmmm. I don't remember that particular attachment, will have to climb into the pile after all. You are right, it is strange.
You know, as I understand it another rule for contractors is that they have to have a year-round actual office. Haven't gotten around to checking whether the company address is more than a PO box or not.
No. 6 asked for the contracting firm's name, contact name, address and phone number. I found it a bit strange that answering that question required an attachment.
Mr. Culver, have you spoken with the State's Attorney?
Yes, they did. No, I'm not going through that pile at 6 a.m. ;^) But, off the top of my head I believe No. 6 is a copy of the city's prevailing wage ordinance.
Nowhere in the correspondence is there any mention of Victor Wogen being a sitting alderman when he obtained the jobs. BUT, in order to cover the bases, last week I sent the assistant CM a list of 11 remaining questions about the city's arrangement with Masonry Works and the question you asked is on the list.
Lynn… did the City give you a copy of what is described as "attached" in response to Robert Wesselhoff's (IDOL) letter — specifically, question No. 6 — as fulfillment of your FOIA?
I wonder if the Dept of Labor was duly informed that the contractor in question was a sitting alderman.
Thanks, too, from me Kay, for explaining "stringing."
And thanks, Pete Culver, for contributing. I hope your local is getting a lot of work here, especially at the high school, because that means our guys and gals are working.
Thanks for schooling me on the term "stringing". Creative Masonry (out of business) has it's own problems unrelating to this issue..The owner of Creative Masonry and Wogen have collaborated on projects together. He has made accusations to us about Wogen that you should take up with him.
Mr. Culver, on one of the Lincoln Hwy. post-demolition jobs the second quote was from an outfit called "Creative Masonry" from South Elgin. Can you confirm for us that a business partner of Wogen's owned Creative Masonry at the time of the second quote? I cannot understand why they called up an out-of-town outfit when there are 6-7 locals who could have done the job.
It looks like I explained stringing once before on October 27, so much for my memory. It does say "local." I do know for certain that it applies to state employees.
Thank you, Mr. Culver.
Oh, if a State of Illinois employee broke up one project into more than one to slide it under a bid minimum amount, that is called "stringing" or less often chaining. If caught, such a person could be terminated and prosecuted. What I do not know is if there is something similar applicable to municipalities.
To Ms Shelton,
When we spoke to Monas about the bid process he mentioned that he didn't think he needed to put out a public bid on this project Masonry Works did…However on our FOIA they gave us two original written bids. One from Masonry Works that Wogen owns and one from a company called Weaver Construction.
We have been told by a former business partner of Wogen that Wogen was an estimator for Weaver Construction. Don't have any strong evidence on that, but the bids between the two contractors were only $500 apart with Masonry Works being awarded the project and under the $20,000 cap rules…Is that bid rigging? Only if you could prove it…By the way… should we allow our schools, police stations, and multi-million dollar projects chopped up into separate bids, so they can't go out for public bids and be awarded to our buddies?
On a most recent FOIA on DeKalb Streetscape 2nd & 3rd Street work, Elliot Wood ( General Contractor) lists Masonry Works as a contractor on the "Material Sources and/or Subcontracted Work form. Dated 09/10/08
We identified Weaver Construction working on the project. When asked if Victor Wogen had any involvement to Weaver, the owner of Weaver told us absolutely not. Weaver has produced no evidense to that fact when we asked. That work was done a few months ago.
Finally, If Wogen claims he only made x amount of profit on the $52,000..have him prove it…As far as we know the DOL ( turned over to the AG) is still waiting for his paperwork that they asked for and has never received.
One of the adjustments that needs to take place regarding the impact the blog world and Channel 14 has on DeKalb city government is eventually they'll realize that they can't get away with hiding things. This concoction story that no one knew is ridiculous and if they were in Pinochio's family they'd all have 3-ft noses. Baker once publicly questioned whether Wogen should consider recusing himself but of course did so with plenty of wiggle room.
I agree the house cleaning shouldn't end with Wogen. Any administrator involved in enabling him should be fired: CM, Legal, Public Works.
Hi Mr. Culver, those are the things that we know happened. What else *might be* out there that we are not aware of yet?
Masonry Works is in collections from the Attorney General's Office for violations of Prevailing Wage Laws for work done in School Dist U-46. The Dekalb Streetscapes project done by M works did not give certified payrolls to the City as required by law. Masonry Works is under investigation by the IDES for NOT paying any unemployment taxes. Monas's discription of how this work was let was like nothing we have ever listened to. The Mayor, Bernicki,the city attorney, were all aware of this issue back in the sping. Some ALderman for the City even think it's okay to hire contractors that don't pay taxes,or even show proof that any employee was even paid or how much. One Alderman claims that the process "saved money". How does hiring contractors like that save money? The house cleaning shouldn't end with Wogen.
What is the date of that meeting, Mac?
Every six months, the council is supposed to meet and minutes of closed sessions should be voted upon for release. Perhaps the public will finally learn about the discussions involving the interim mayoral appointment!!! In fact, the council is overdue for this process — they were supposed to do this in October. But once again, following ANY procedure involving public disclosure is not very high on this city manager's priority list.
(Technically, this would be yet another OMA violation, which last I checked, is a CRIMINAL OFFENSE. When one commits a crime in the course of doing city business, that's pretty significant, don't you think?)
Happy November everyone and don't forget to adjust your clocks back an hour!
Right. OMA. Unfortunately there's a very tight statute of limitation on OMA violations.
I forgot about that hire and he did not appear on the list I FOIAed last week.
They apparently don't think the other rules apply as long as they can keep each individual expenditure under $20,000. I'm pretty sure the "rental inspector" hit the $20,000 mark in earnings during the contract year.
has the Finance Advisory Committee ever discussed this practice of such a large discretionary purchasing power?
Nope. Since the new fiscal year began we’ve partially addressed social service expenditures, health care and liability costs and we’re just scratching the surface on debt policies. We basically meet once a month and the city administration (appointed) determines the agenda.
If the question was asked, my position is that a discretionary fund is necessary due to equipment and hardware repair and replacement costs. But in no way should elected or appointed municipal personnel be allowed to transact any business with the city through the discretionary fund.
Another troubling use of the discretionary fund was when Mark B. hired a retired police officer, as an independent contractor, to run the proposed rental inspection division. The contract was approved by city council during closed sessions (illegal). The arrangement was done within the parameters of the discretionary fund. That loophole needs filled with two tons of cement.
Geeezsh! Its gets even worse? An illegal transaction/contract and a retired cop was the contractor? Mac, do you mean illegal in that the open meetings act was violated, or is there also another statute?
Yes, Skeptic is spot on. Furthermore, current practices as embodied by the Wogen deal and our woeful financial outlook are not unrelated. The same poor judgment applies. One either takes care of one's friends or concentrates on the well-being of the city. You can't do both; it's unsustainable.
Furthermore, Mr. Biernacki disqualified this potential exemption by avoiding the formal bid process. Perhaps Alderman Baker was correct when he suggested that existing law is sufficient. Now if we could only gain confidence in-house counsel actually researched and applied appropriate state law!
I'm still slack-jawed over the idea that this was framed as an issue of Chapter 54, the Financial Management ordinance, totally bypassing Chapter 8, referring to the Ethics Act. Ethical conduct is not just something we "do for show" — as suggested at the last council meeting. It is EQUALLY THE LAW.
The council — and public — needs to take heed of the incredible power which the city manager holds in how and when he brings issues before the council. The variables at his discretion are so wide and varied as make the entire system open for mass manipulation.
Mac, my view of the potential exemption you cite suggests that IF the majority of the council had voted on this, it might be okay (assuming the other conditions were met). However, since Mr. Biernacki chose to keep this from the public and never brought it before the rubber stamp squad, the potential exemption is wholly disqualified. Life lesson: when in doubt, make it public. Don't get caught with your hand in the cookie jar — or in this case — on the public's checkbook!
Mac, has the Finance Advisory Committee ever discussed this practice of such a large discretionary purchasing power? What percentage of city-initiated purchases never come before the council for approval?
This sounds so much like the recent fiasco at the University of Illinois during which Governor Quinn FINALLY requested resignations.
EVENTUALLY the president and trustees stepped down, not without some posturing and procrastination. In the case at hand, perhaps similar to the university trustees, there could be more and less "guilty" parties, that is, a difference as to what degree they knew about or understood the dynamics of the arrangement between Mr. Biernacki and Mr. Wogen. Certainly many knew something. To assume any less is to imply our elected and appointed leaders are asleep at the switch and derelict in performing their public duties. I wonder how many of them have professional errors and omissions policies?
According to the above video, Kay Shelton has been told many contacted the Attorney General regarding this issue. If this in fact involves a breach of state law, then it seems the AG must respond in some form, at least to determine lawfulness and whether any part was willful. This is not a simple consumer complaint to be added to some list for later action.
Lisa Madigan, however, being one of the major factors in Chicago politics, as well as AG, would probably rather hold this at arms length.
So who will prosecute this issue? If the mayor and council are in any way complicit, can or will they ask for resignations? Or even step down themselves as the U of I trustees did at the governor's request?
Beyond determination of lawfulness, who will run the city if involved parties are found guilty of statutory criminal offense and subsequently removed from office?
The whole thing would be funny if it weren't so sad.
My practice thus far is to use public records and contacts. I am generally not against an expansion of sources/subjects but for personal reasons have had to draw a line.
Did anyone contact the other quoters to find out what their thoughts are on this matter?
The out-of-towner might be a friend of Biernacki, or of Wogen the Connected himself, no?
What did he not do or do wrong the first time that he got the chance to work on that east wall twice.
With regards to the out of towner, Mark Biernacki must have used this outfit when he was in Elgin. What else could it be. I can think of at least 6 to 8 contractors locally that would have been able to do it. Not to say what a company does or doesn't do but a couple of the companies mentioned do not really strike me as the first contractors that I would have contacted to do this type of work. Maybe that's why they were contacted.
If they city paid Wogen off for these jobs when they knew that the state was looking for money, they could easily get stuck paying Wogen's debt. This would mainly be done by the city withholding a certain amount of money if the state were to put a lien up against Wogen and his company. Most companies that I know would not have hired any company carrying as much baggage as Wogen was carrying with the state alone.
p.s. The FOIA abuse got me a PDF copy of the city's purchasing manual. It's 11 pages long. E-mail me if you'd like a copy.
It includes one medium-sized paragraph on standards of conduct.
Oh, my. That is a good question: whether the city's had to step up and pay Wogen's debts.
I'm still evaluating what I obtained through my latest foray into FOIA abuse, but a couple things jump out. Not only were the two walls at 231 quoted separately, Wogen actually worked on the so-called "east wall" twice (same job description) to the tune of around $25,000 total. Here we have another problem arising, I guess, out of the failure to identify an aggregate threshold that would trigger public disclosure. Also I want to know what possessed them to phone an out-of-towner for the 2nd quote on that job.
If they want to stick to discussing legalities it's because it provides a fig leaf, no matter how tattered. But that's fine. Have they checked with an outside municipal lawyer yet? We must begin the painful process of inspecting and repairing the legal and ethical framework within which the city does business because that's the only way we'll ever get consistently good policy decisions out of them. Right now it's a highly reactive, patchwork-and-bandage kind of process.
[…] 9:40 a.m.: Links to the latest at DeKalb County Online, Wogen Watch and Northern […]
In most cases like this, if the city continues to do work with the company in question and does not respond with all of the necessary paperwork, that city could be held liable for the payment of the short pay based on prevailing wage. City also could be in trouble if it wasn't stated that prevailing wages must be paid since it was using taxpayer dollars on the project.
Haste makes waste!
Also, this thing about a safety issue and that this was work that needed to be done immediately is purely ridiculous. This a made up excuse to help relieve some of the pressure off of public works and the city manager for hiring Wogen's company. If it truly was an emergency then why weren't the buildings evacuated until the work was performed?
The areas that were repaired were already in a roped off area that didn't present any danger to someone walking underneath unless they were there illegally and trespassing. The more excuses they present the guiltier they all look in this matter. The trick with breaking up the job into multiple addresses just to come in under the $20,000.00 discretionary amount is what throws up so many flares that it really looks like the finale of the local 4th of July fireworks show.
Several of the city managers in the Chronicle follow story really sum it up the best with their comments. Just the appearance of something wrong is too much and not right. So true.
There appears to be a not-so-subtle attempt to shift the focus of this issue to the question: Is it legal for an alderman to do business with the City?
Of course that is legal (if statutes are followed) but that's not the issue. The issue is why was Wogen's financial interest not publicly disclosed until after it was exposed? Why wasn't Wogen's failure to comply with the Prevailing Wage Act not reported to the council and the public EXCEPT by Kay Shelton.
It cannot be argued that staff did not know and its frustrating that the mayor and city council members are making that argument:
<img src="http://i614.photobucket.com/albums/tt221/wogenwatch/April132009ILDeptofLabortoRickMonas.jpg" border="0" alt="April 13, 2009 IL Dept of Labor to Rick Monas">
BTW, if you read Monas' account of the procedure to IDOL over at Wogen Watch, you see that the no-bid procedure is being at least partially justified by urgent safety concerns.
I have contacted other newspapers in town to caution them about taking the city's word that the Wogen Arrangement is/was legal because it could end up coming back to haunt them.
Ask state employees how much trouble they would get into for something called stringing. "Stringing" is defined in the Criminal Code Act of 1961.
Without a law prohibiting stringing, imagine a hypothetical example of a couple of 'creative' people in Chicago's Streets and Sans' breaking up one street repair job pothole-by-pothole in order to slip city work under the public bidding level. 😉
Hi Mac, I think I have one slight correction: I believe the checks to Masonry Works, LLC came out of the TIF Fund. The city manager can spend up to $20,000 at his discretion, and I do not believe that discretion has to be for an emergency.
It is my thinking that a city council should approve the 'big ticket' items while the regular bills that come from day-to-day operations should be approved by a city manager. I believe Illinois state law follows that.
All that said, with Halloween upon us, that TIF Fund probably needs an exorcism by now. 😉
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The Wogen era has come to a bittersweet ending, that’s for sure. We would hope that a replacement for his seat wouldn’t be very difficult, as there are many honest and capable people that live in DeKalb. We are encouraged by the activism those have shown in the community; it proves that “We The People” can still have justice if we get off our butts and confront those in government and make them accountable for their actions and inactions.