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McHenry County state's attorney: No charges for former Algonquin Township Highway Commissioner

McHenry County state’s attorney, AG decline to prosecute Bob Miller

McHenry County State’s Attorney Patrick Kenneally will not prosecute former Algonquin Township Highway Commissioner Bob Miller after a nearly seven-month corruption probe.

In a 52-page, single-spaced report released Thursday, Kenneally detailed an intense investigation his office opened after “a convulsion of indiscriminate allegations” surfaced against Miller in 2017.

A score of allegations accused Miller – who spent 24 years as highway commissioner of McHenry County’s most populous township – of using public dollars to pay for personal items (women’s clothing and Disneyland tickets among them), deleting vital records from his government computer and paying his employees illegal bonuses.

Kenneally’s chief investigator could not find enough – or, in some cases, any – evidence to prosecute.

“Rather, we determined, mostly there is insufficient evidence to establish beyond a reasonable doubt that Miller committed a criminal offense,” Kenneally wrote.

Although Kenneally did not indict Miller, his report offered an indictment of townships as a form of government that is “deeply flawed.”

The findings of the investigation did more than create the appearance of “incompetence, guile and impropriety,” Kenneally said. They illuminated “a larger, systemic breakdown” of townships.

Kenneally’s final thoughts on the investigation included a list of recommendations and suggested a solution: abolish the highway department and township through consolidation.

Kenneally and Miller could not be reached for comment Thursday.

The origins of a probe

It is unusual for a state’s attorney’s office to probe criminal matters. The Illinois Supreme Court allows it when other law enforcement agencies “inadequately deal with such investigation or where a law enforcement agency asks the state’s attorney for assistance.”

Long before Kenneally concluded his report, the allegations against the highway commissioner failed to persuade other law enforcement agencies much larger than the state’s attorney’s office to push forward a prosecution.

The FBI investigated the Algonquin Township Highway Department’s credit card use and spending on shopping websites such as Amazon. The federal agency presented its findings to the U.S. Attorney’s Office, and charges were declined.

The two law enforcement agencies with jurisdiction to investigate Miller – the McHenry County Sheriff’s Office and Illinois State Police – both declined to open a case.

They tendered the job to Kenneally.

A challenging investigation

A small staff, few resources and vicious politics made the Miller investigation a taxing endeavor.

Kenneally’s office has one full-time investigator with experience conducting criminal investigations.

“We employ lawyers,” Kenneally said, “not detectives.”

To examine the allegations aimed at Miller’s time in office, the state’s attorney issued dozens of subpoenas, reviewed more than 10,000 emails, analyzed thousands of pages of financial documents and conducted dozens of interviews, according to the report.

Although Kenneally characterized the investigation as “complete” and “thorough,” it also was “undermined by the public nature of the allegations.”

A grand jury inquiry into Miller’s highway department spending leaked to the media in 2017, uncovering a proceeding that usually is kept secret.

That meant an element of candor was lost when interviewing witnesses who had time to prepare their responses to anticipated questions, Kenneally said.

“[A] number of witnesses refused to speak with us, as they did not want to involve themselves in the evolving spectacle,” he said.

The state’s attorney’s office also navigated immense pressure from opposing political circles that either called for Miller’s prosecution or exoneration.

“Particularly troubling were those voices that, not having access to all information and being politically opposed to Miller, stridently urged our office to put a man’s liberty in jeopardy,” Kenneally wrote.

Criminal prosecutions can have enormous financial, health and social consequences on the life of the accused, Kenneally said. Without a “moral certainty” that crimes were committed, the state’s attorney could not prosecute Miller.

The sheer number of misconduct allegations against Miller – lambasted in blogs and social networks – does not serve as evidence, Kenneally said.

As an example, Kenneally said, Algonquin Township Highway Commissioner Andrew Gasser stands among the accused, but the allegations against him have not been publicly scrutinized.

The allegations

The state’s attorney’s report offers details about the investigation of
10 misconduct allegations against Miller, including:

• Miller improperly spent highway department money for private purposes.

In the fall, after numerous charges that Miller misused the highway department’s credit card, Kenneally’s office contacted the FBI.

The federal agency reviewed Miller’s spending between 2012 and 2017. In April, the FBI informed Kenneally’s office that it had completed its investigation and did not believe Miller’s “questionable spending” was criminal.

Kenneally’s office reviewed the same bills: meals, women’s clothing, online shopping, gift cards, Disneyland tickets and more.

The investigation revealed that township officials approved every one of those bills and that the spending, in most cases, served a public purpose.

“With respect to the Disneyland tickets, this expenditure also bore elements of legitimacy,” Kenneally wrote, highlighting the purpose of the trip: an American Public Works Association conference in Anaheim, California. “We learned further that, as part of the conference, there was a training and networking event held at Disneyland that necessitated the purchase of the tickets at a reduced rate.”

Dissecting records of at least five restaurant meals for election judges in Algonquin Township, Kenneally had serious doubts the food outings served a public purpose.

The investigator, however, found no evidence that Miller was enriched by providing the food or that he sought to stoke some personal interest in doing so.

The allegations, Kenneally said, are “either unsupported or do not amount to proof beyond a reasonable doubt.”

• Miller was illegally paying employees in the form of “miscellaneous pay.”

Prosecutors homed in on more than $260,000 in unexplained bonuses paid to employees since January 2013.

Miller’s wife and secretary, along with his son-in-law, foreman Derek Lee, received the most extra pay, characterized as “miscellaneous pay.”

Township officials had no written policy explaining or supporting those payments, but Kenneally’s investigation found there is nothing criminal about providing “miscellaneous pay” to public officers – a practice also used under the leadership of the current highway commissioner.

In an interview, Algonquin Township Supervisor Charles Lutzow “opined that stipend pay served the public purpose of adequately compensating and retaining productive employees.”

• Miller deleted public files from his Algonquin Township computer.

On Jan. 15, the McHenry County State’s Attorney’s Office was emailed a copy of a forensic audit conducted by Decatur-based computer company Garrett Discovery.

Gasser had commissioned and paid for the $4,800 report.

The report alleged a “wiping” of documents. Kenneally found nothing unlawful about that.

“There is insufficient evidence to charge Miller for destroying records,” Kenneally wrote.

It is not illegal to destroy personal documents unrelated to public business without approval, Kenneally concluded. Given that any deleted documents are “irretrievable, establishing that public documents were deleted would be impossible.”

Case closed

Its probe shuttered, the McHenry County State’s Attorney’s Office brought the findings to the Illinois Attorney General’s Office.

After a nearly three-month review, the attorney general declined charges.

“We also decline to prosecute Miller at this time,” Kenneally wrote.

As a conclusion to his report, the attorney criticized the state’s township and highway codes as “entirely unclear, self-contradictory and interminable.” Kenneally was “specifically dismayed” with the Illinois Highway Code.

“As one employee commented during an interview, ‘the only difference between the highway commissioner and God is that the highway commissioner gets a free truck,’ ” Kenneally wrote.

The investigation found township officials failed to impose and enforce “the most basic of internal controls that could have prevented many of the excesses,” Kenneally wrote.

“Lutzow’s shocking description of the township’s spending policy, ‘Everyone just did [what] they thought was correct,’ amply sums up its deficiencies,” he wrote.

Although Kenneally declined charges against Miller, the public drama has not ended.

“New allegations seem to be surfacing regularly,” Kenneally said. “Our investigation into these new matters will continue.”

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