Madison - St. Clair Record

Thursday, December 12, 2019

Madison County board chairman, administrator seek summary judgment in suit preventing access to county financials

By Heather Isringhausen Gvillo | May 22, 2019

Faccin and Prenzler

Madison County Board Chairman Kurt Prenzler and County Administrator Doug Hulme seek summary judgment relief from County Auditor Rick Faccin’s lawsuit, which aims to prevent access to county financials.

Faccin seeks an injunction of a March 20 resolution ordering the auditor to allow the Madison County Board and a number of officials access to the software used to track county financial information. The county board passed the resolution by a party line vote of 13-12 with Republicans carrying the majority.

Prenzler and Hulme filed a motion for summary judgment on May 17 through attorney Don Weber of the Craney Law Group in Edwardsville.

“This is a case of the tail wagging the dog,” Weber wrote. “The auditor argues that because he has entered confidential information onto the USL financial software, all the information on the software may be kept secret from the corporate authority of Madison County.”

Weber wrote that Faccin’s refusal to allow Prenzler and Hulme access to the financial information “is an infringement on the rights of the county board, county board chairman and county administrator to have unfettered access to the county’s financial records, documents and books.”

He argues that the county board is “the corporate authority of the county” with the power to create a financial reporting system and the duty to manage county financial matters.

“Quite obviously, once the county board has installed an adequate system of accounts and financial records to fulfill their duties and responsibilities, they have the right to access such systems,” Weber wrote. “This plenary auditing and oversight power, and access to books, held by county boards is further enshrined in the Code provision that requires county boards to conduct a yearly independent audit (CAFR) with an outside auditor.”

Weber argues that because the county board can examine an outside auditor’s books and records, it must be able to examine the source – the USL financial software system.

“Access to the county’s financial software system is even more crucial to the county board chairman and county administrator, who must sign the annual audit and certify that the financial data supplied to the outside auditor is full, complete and correct,” he wrote.

He added that the county board has an obligation to review county records to determine its financial well-being and the honesty of county government. Any county officer who refuses to permit the county board’s access to the financial information is committing a crime under Illinois law, the motion states.

Weber argues that the auditor is the bookkeeper for the county board, but is not a gatekeeper.

“He has ‘general accounting duties’ as the plaintiff maintains, but general accounting duties do not equate with overall financial control of the county,” he wrote.

“He does not have the right to actually pay claims or actually prepare the budgets. Only the county board and county board chairman have that right,” Weber added. “The right to pay claims and approve budgets carry with them the inherent right to inspect the financial books and records the auditor is keeping secret.”

Weber argues that Madison County’s budget comes “with a $35 million yearly price tag to taxpayers,” and “requires several offices and employees” to properly monitor the finances.

The motion states that Faccin believes his oversight duties are primarily limited to informing officials and departments when they are over budget or if he believes something is wrong with expenditures.

“But $30,000 of new furniture for the public defender’s office in three years has gone unquestioned by the auditor. It is the oversight function of the county board to investigate that type of problem,” Weber wrote.

However, he added that unusual purchases or payments does not necessarily mean criminal conduct or mismanagement, but proper oversight is necessary to ensure that all county spending is looked into.

Weber also argues that Faccin has previously testified that his audit function is typically limited to auditing only the departments or matters where an audit is requested.

“The county auditor has only written to the county finance committee one time in 20 years and that was to complain about the use of a county credit card to buy two cigars,” Weber wrote. “Faccin admits that former chairman Alan Dunstan used his county credit card for personal expenditures – but it was OK because Dunstan paid the money back eventually after he was exposed.”

The motion states that Faccin has at times argued that he has sole oversight for the county’s finances in addition to outside auditors who prepare the annual audit.

“However, when it comes to several notable and profound crimes that have been committed on the current auditor’s watch he denies any oversight responsibilities,” Weber wrote.

For example, former Madison County treasurer Fred Bathon was charged in February 2013 with violating the Sherman Antitrust Act after pleading guilty to rigging annual auctions of property tax liens from 2005 to 2009, allowing his campaign contributors to charge delinquent property owners the maximum 18 percent interest.

Despite his contention that he maintains sole oversight, the motion states that Faccin admitted that other officials may also have oversight responsibilities.

In fact, Faccin agreed to give the county board chairman and the county administrator access to the financial software last year, but then reneged on his agreement. He had agreed to make redacted information available on a “read only” basis.

Weber calls Faccin’s argument that Prenzler and Hulme want “free and unfettered access to other county offices like the sheriff or state’s attorney” a red herring.

“Having access to the financial books and records of the county is not the same as general access to the computer system of other offices,” the motion states.

Weber argues that the voters deserve proper oversight after no prior administration has ever asked to review the financial information, according to Faccin.

“Although the plaintiff points out that no prior administration has asked for access to the financial information of the county, this is a point of shame and ineffectual government, not pride,” Weber wrote.

“The public has the right to expect accountability and transparency from their elected officials. Accountability and transparency cannot be achieved if one person controls who sees what data when and in what indecipherable format,” he added.

Arguing that “elections matter,” Weber wrote that although Faccin said he does not trust Prenzler and his employees with the financial information, “nevertheless, the voters do.”

The motion states that neither Faccin nor his chief deputy, Jennifer Zoelzer, are certified public accountants. Further, Faccin has a degree in social work and has no education in accounting.

However, Weber states that Prenzler is a registered certified public accountant and Hulme “has a good deal of education in the field of accounting, including an MBA, with a concentration in accounting.”

Weber wrote that neither Faccin, nor Zoelzer, nor any of his employees are trained on how to handle personal identifying information and HIPPA data on a general ledger, “but nevertheless is denying access to the defendant based on that information being on the general ledgers.”

“The auditor is not excused of his duty to make financial information available to the county board and board chairman simply because he has mishandled HIPPA protected information and PII information and improperly placed it on the general ledger without using the de-identifier methods set out in the regulations,” he wrote.

Calling the inclusion of personal identifying information and HIPPA data on the general ledger “problematic,” Weber explains that the information should be de-identified and quarantined since the ledger is public information and can be obtained by the general public through the Illinois Freedom of Information Act.

“The auditor’s inclusion of HIPPA and PII information on the general ledger interferes with the county corporate authority’s and administration’s right and duty to have access to financial information for purpose of the annual audit, preparation of the annual budgets, approval of line item transfers and general oversight of the county’s finances,” he wrote.

Weber added that of the approximately 530 unique budgets in Madison County, only a few would contain personal identifying or HIPPA information, and only a few of those only a few account codes on each budget should contain personal identifying information.

Faccin filed suit in Madison County against the county board, Prenzler, Hulme, and Treasurer Chris Slusser following the resolution ordering the auditor to allow access to the county's USL financial system.

The county board had declared that the system serves as the official book of accounts, and that it is essential for honest government that details be accessible by administrators.

Faccin’s lawsuit claims information contained in the records of the auditor included medical details protected by the Health Insurance Portability and Accountability Act (HIPAA).

The Madison County Board, Prenzler, Hulme and Slusser responded by filing a countersuit, alleging they are seeking county financial information from the USL Software System on a “read only” basis, which is allowed in all other Illinois counties.

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Madison County Circuit CourtMadison County AuditorMadison County BoardMadison County