Faccin and Prenzler
Madison County Circuit Judge Sarah Smith granted Madison County auditor Rick Faccin’s request for a temporary restraining order on a resolution the board passed last month that would have allowed access to the county’s USL financial system.
“My ruling is no way determinative of the underlying matter,” Smith said at a hearing Monday.
She concluded that Faccin has a duty to safeguard any private information he has. Smith expressed concerns about who would gain access to that information based on the way the resolution is currently written.
As written, the resolution permits access to the chairman, the administrator, the treasurer, and the chairman’s unspecified "designees."
Smith also said Faccin could likely prevail on merits, so maintaining the status quo regarding who has access to the information was a proper ruling.
“Not saying that he will, but only that he could,” she said.
“Faccin has been keeping these financial records away from us for more than two years and a few weeks more won’t matter. I will continue my fight for financial transparency,” board chairman Kurt Prenler said in response to the ruling.
The county board declared that USL Financials serves as the official book of accounts, and that it is essential for honest government that details be accessible to Prenzler, administrator Doug Hulme, and treasurer Chris Slusser.
The resolution was passed 13-12 along party lines with Republicans carrying the majority on March 20. Four members were absent.
Faccin filed a lawsuit through private attorneys Kevin Green and Thomas Rosenfeld of Goldenberg Heller in Edwardsville seeking declaratory judgment and injunction to block enforcement of the resolution.
Faccin also moved for a temporary restraining order on the resolution to limit access to the USL system until the court determines if broadening access is proper.
During the hearing, Rosenfeld told Smith that a temporary restraining order is necessary to prevent irreparable harm.
“The law is crystal clear on this issue,” he said.
Rosenfeld added that maintaining the status quo during proceedings will ensure “nothing happens that cannot be reversed.”
“Once the genie’s out of the bottle, there’s no way to put it back in,” he said. “Once it gets out, it gets out. That ship has sailed.”’
Rosenfeld said the USL system contains personal information including HIPPA records, employee claims against the county, names, addresses, social security numbers, bank account numbers and information on those who served on grand juries.
“Now that is not unimportant given the investigation,” Rosenfeld said, regarding grand jury information.
His reference was to an investigation that prompted several January 2018 raids at the county administration building where the computers of administrator Hulme, IT director Rob Dorman, communications manager Cynthia Ellis and former county official Steve Adler were seized by a special task force put together by Madison County State’s Attorney Tom Gibbons.
Rosenfeld argued that the resolution inappropriately allows access to the chairman’s designees.
“I don’t know who that is,” he said. “His cousin? One of his donors?”
Rosenfeld said the county board's resolution was an attempt by Prenzler and board members “to illegally interfere with the duties, processes and functions” of the county auditor.
“The county is prohibited from doing what they’re doing,” Rosenfeld said.
He said that Faccin already provides a detailed report, a budget, an expended analysis report and a monthly financial report as required, and added that the county’s checkbook is available to the board. Anything beyond those reports is unnecessary, Rosenfeld argued. However, if the county board wants additional information, they should file a Freedom of Information Act, he said.
He added that Faccin is the county’s accountant, and the board is not.
“It is important for the county to be transparent,” Rosenfeld said. “That’s why everybody’s got their job … Everybody does their job in our world.”
“They want to go into the system and just take what they want to take and it doesn’t matter if it’s Jill, or John, or Joe’s private information,” he added.
Rosenfeld also read an email in which Prenzler, after the resolution passed, said he met with Dorman and their communication referenced licenses and updates required for the software.
“So he’s in the software business now?” Rosenfeld asked.
“They gotta ask the auditor before they invade his software to access his records,” he added.
Don Weber, who represented Prenzler at the hearing, responded that the board wants access to data, books and financial records, but doesn't want to interfere with Faccin’s offices or duties. He also said they don't have any interest in grand jury information.
“What we have here is the insertion of the Kingdom of Faccin,” Weber said.
He added that Hulme is the director of the county’s medical records and already has access to HIPPA records, and Prenzler is in charge of the personnel department and already has access to all personnel information.
“Maybe in the kingdom of Faccin he thinks he is the only one with access to these records,” Weber said.
Calling Faccin a "glorified bookkeeper," Weber added that Faccin is not a certified public accountant and should not even have access to specific confidential records. Instead, personal information should have numeric identifiers rather than names, Weber said.. He also questioned why the auditor would have access to the grand jury information.
“In the first place, the data shouldn’t even be on his computer,” Weber said.
Weber also argued that the board legally has authority to access the information. He said that the chairman and the board have to sign off on an audit every year. For the last two years, they signed off on an audit, but noted that they have not seen the necessary data to confirm that everything is correct.
Weber said that about 40 percent of the money spent on the county is not in the provided record books because the auditor is allowed to pick which account some bills are paid from but isn’t required to provide that information.
“He can reveal what he wants and he can hide what he wants,” Weber said.
Smith reminded Weber that they were not there to argue the merits of the case. Instead, the hearing was to determine if there would be irreparable harm if a temporary restraining order is or is not approved.
“I’m just here to determine whether a TRO should be entered,” she said.
She expressed concern over the “chairman’s designees” having access to private public information, saying people outside the county board could gain access.
Weber responded that he is not opposed to changing the wording of the resolution to limit it to just those mentioned personally.
He added that continuing to allow just one person access to the county’s financial information could lead to potential public harm. He used Fred Bathon’s bid-rigging scheme as an example of what could happen when there oversight is lacking.
Smith asked what the irreparable harm would be if a temporary restraining order were enacted.
Weber responded that they don’t have to prove irreparable harm, Faccin does.
“And I’m telling you they have,” Smith said.
Weber responded that Prenzler and the county board would not be able to fully do their jobs without access.
“We have a right to know all of this information,” he said. “We are not trying to alter the duties of the auditor.”
Jeff Ezra represented the county board at the hearing. He said it is the right of the county board to have access to the financial information.
Ezra said it is the county board’s duty to investigate money requests and whether or not those requests are appropriate, not the auditor.
“The bottom line is whether the county board has the right to have that information available to it so that it can make a decision” on budget requests, he said.
Ezra added that the resolution “may have been inartfully drawn" by including the chairman’s "designees," but that does not mean the board shouldn’t have access.
Ezra said anyone can file a FOIA request for the exact same information the county board seeks access to. Faccin would be obligated to provide that information with redactions.
He said the county board would also be obligated to redact any information before providing it to the public.
Rosenfeld said that if the county board wants information, then they should just ask.
“This is not Wizard of Oz,” he said. “There’s nothing behind the curtain here. “If they need something, they want something, they get something...There is nothing sinister about that.”
Weber responded that they do not have to go to Faccin to request data.
“Mother, may I please have this data,” he said.
Faccin’s lawsuit states that he began using USL software in 2001. Records kept by USL contain data protected under federal law, and other information is subject to exemption from disclosure under state law.
He claims that the only people with full access to the software are the auditor, deputy, and staff.
Smith scheduled a preliminary injunction hearing for April 23 at 9 a.m.