Summary judgment sought in suit preventing access to county financials; County board, treasurer discredit auditor’s ‘obsession’ with ongoing investigation

By Heather Isringhausen Gvillo | Jun 14, 2019

Faccin and Prenzler  

Madison County auditor Rick Faccin calls a resolution demanding access to county financial information for certain officials an attempt to “move the auditor’s file cabinet into their own offices” and argues that allowing access would be improper due to an ongoing investigation.  

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. 

In response, the county board and treasurer Chris Slusser filed a motion for summary judgment on May 29 through assistant state’s attorney Jeff Ezra. 

They argue that Faccin’s refusal to allow access to the financial information due to the current special task force investigation in board chairman Kurt Prenzler’s office is invalid. 

Faccin is referencing an investigation that prompted several January 2018 raids where the computers of administrator Doug 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 state’s attorney Tom Gibbons. 

“That although he does not dislike Prenzler and/or Hulme, Faccin does not trust them, and will not allow them to view the software as they are purportedly under criminal investigation,” Ezra wrote.

“Faccin’s obsession with a criminal investigation has nothing to do, and is no argument for, any LEGAL issues in this case,” he added. 

Slusser and the county board argue that in his arguments to restrict access to the USL system, Faccin has maintained that the information included in the system “is his and he can therefore do with it whatever he wishes" and that he must ensure the confidentiality of personal identifying information by not disseminating it to anyone. 

“However, none of this matters one iota for the issues before this court, as the resolution does not in any way, infringe, compromise, alter, abrogate, amend, supplement, or effect the duties, powers, and responsibilities of the auditor,” Ezra wrote. 

The motion also stresses that the information will not be provided to the public.

“Perhaps the biggest Red Herring in this matter is Faccin’s claim ‘his’ information contains CI and PII and cannot be disseminated. He is right … IF IT WERE GOING TO BE DISSEMINATED TO THE PUBLIC,” Ezra wrote in all caps. 

Slusser and the Board discredit Faccin’s claim that allowing access to the system would result in a “slippery slope” to which offices could be “invaded.”

“The problem with this argument is the Illinois Legislature, in its wisdom, has established specific legislation that protects certain information held by those departments from ever being disseminated,” Ezra wrote.

“If the Illinois Legislature, again in its wisdom, believed an auditor held information of such importance, it could have passed similar legislation,” he continued. 

Faccin filed a response to the motion on May 31 through attorney Kevin P. Green of Goldenberg Heller & Antognoli PC in Edwardsville, arguing that the Resolution “reveals defendants true intent: to move the auditor’s file cabinet to their own offices.” 

Faccin argues that the defendants do not have the authority to access the auditor’s files.

“The auditor’s case is straightforward: The auditor is a constitutional office. Entering the system (or file cabinet) of a constitutional office requires the officer's permission,” Green wrote. 

Faccin argues that the board “improperly equates a right to obtain financial information with a right to access the auditor’s software.”

He also argues that the county board has admitted that “the actual information has already been provided.”

“Thus, the repeated claim that the auditor is hiding or withholding financial information is pure fiction,” Green wrote. 

Faccin alleges his office currently provides daily financial reports to the treasurer, including a spreadsheet with requested portions of the general ledger. 

He argues that the spreadsheet allows the county board to pinpoint expenditures of each department. For example, the spreadsheet shows that the circuit court paid 222 jurors a total of $14,375 in March 2019 and a total of $47,575 from Jan. 1 through March 31. 

“Thus, it is pure fiction that the auditor is not providing necessary financial information to the board, or that the information provided is unusable or in an unworkable format.

“Defendants have failed to identify what specific non-confidential information the auditor has failed to provide. In fact, the Resolution itself fails to identify any information being withheld by the auditor to the board,” Green wrote. 

Faccin further argues that the Resolution is unenforceable.

“[I]t pushes aside the auditor, and improperly gives individuals access to the entirety of the auditor’s software without his permission, requires the installation of the software outside of the auditor’s office, opens the records containing confidential information to individuals outside the auditor’s office, alters his duties, powers, and functions, dictates how he performs his duties, and delegates the auditing functions to unelected appointees and unnamed designees,” Green wrote. 

Faccin also filed a motion for summary judgment on May 28. 

Faccin did not go into detail, but argues that he is hesitant to provide access to the financial system due to the ongoing investigation at the county administration building. 

Faccin also states in his motion that confidential information is entered into the USL financial system to avoid duplicate payments, audit receipts and disbursements and create checks, including grand jury service payments.  

Faccin quoted Gibbons from the March 20 board meeting, where he said that allowing access to the USL system could lead to a class action. 

“This resolution, in the way that it is written, could be interpreted in a way that would create a massive violation of privacy rights for the citizens whose records are contained in it,” he said. 

Faccin argues that because the USL software is not an internet-based system, a new license would have to be purchased for each new user and software would have to be installed on their computers. He adds that he has independent statutory authority in regards to purchasing and is not subject to the county’s purchasing requirements. 

Prenzler and Hulme filed a response to Faccin’s motion for summary judgment on May 31 through attorney Don Weber of Craney Law Group LLC in Edwardsville. 

They argue that several issues of fact remain unresolved by the evidence, including whether the defendants are satisfied with the financial information currently provided by Faccin, whether or not the auditor should include confidential personal information without redactions, whether Faccin can commingle the county’s financial information with privileged miscellaneous information and then deny access, whether Faccin and his employees are capable of maintaining confidentiality, and whether read-only access would hinder the auditor’s duties, among other contested facts. 

The defendants maintain that they have a right to access the financial information independently of the resolution, and the plaintiff has stated that he is only seeking a declaration that the resolution is invalid.

“If plaintiff only seeks to have the county board resolution declared invalid, defendants intend to immediately access the financial software at the conclusion of this case.

“Defendants have respected the court’s order, but respectfully state that the TRO is overbroad in enjoining the county board chairman and county administrator, if the only issue the court is being asked to decide is whether or not the resolution is valid,” Weber wrote.

The defendants also argue that Faccin’s complaints about the cost of updating the USL software to allow read-only access is not valid. They state that Faccin claims an upgrade would cost $7,000 to $10,000, which is not in his current budget. However, attorney’s fees from the lawsuit he initiated must also come from his budget.

“Surely that amount is far in excess of $10,000 and grows daily,” Weber wrote.

Prenzler and Hulme also filed a motion for summary judgment, arguing that Faccin 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.

Faccin filed suit in Madison County against the county board, Prenzler, Hulme, and 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 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.

The county board and Slusser answered the complaint on May 29. They deny that the auditor already provides all necessary information or that they are attempting to circumvent the auditor’s duties. They also deny that the resolution is unauthorized legislation. 

On June 6, Madison County Circuit Judge Sarah Smith granted Faccin’s motion to continue, stating that the parties are continuing to engage in settlement discussions. A hearing on all pending motions has been set for July 2 at 1 p.m. The temporary restraining order has been extended until the hearing. 

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Organizations in this Story

Craney Law Group Goldenberg, Heller, Antognoli Madison County Auditor Madison County Board Madison County Circuit Court

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