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JASON W. POHREN Hancock County State's Attorne .-·

TO: COUNTY BOARD MEMBERS FROM: JASON W. POHREN RE: AMBULANCE BUILDING DATE: April 20, 2015

MEMORANDUM

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Approximately three weeks ago I was contacted via telephone by Board Member Marc Huston. He

advised that there was an emergency at the ambulance barn that required immediate attention. He

explained that they needed to complete construction projects that would require an approximate

expenditure of $40,000. I explained that the law required any projects over $30,000 to be bid on. I also

explained that there was an exemption if the county board aectarecf t~ect-an...e.mergency in wftiei=r--­case the project could be completed without the bidding process.

Approximately five minutes later Board Member David Walker came to my office in person. He

explained that they had an emergency at the ambulance barn. I explained that I had just spoken with

Marc Huston and that Marc had indicated that the work would be approximately $40,000. I explained

the law to Dave as I had done with Marc. Dave indicated that Marc had overestimated the cost of the

projects and that the work to be completed would be approximately $5,000. I explained that if the work

was only $5,000 there was no requirement to bid the project.

I believed that there was a significant discrepancy in the two amounts of the project as provided by

Marc and Dave. As such, when I spoke to Board Member Cary Gray later the same day, I explained to

him the conversations that I had with both Marc and Dave and reiterated the legal requirements to take

bids if the project was in excess of $30,000 or the requirement to have the full board declare the

situation an emergency.

I heard nothing more about the situation at the ambulance barn until Wednesday, April 15th. Tyler

Wi ison contacted me via telephone and explained that the plumber was ready to install the sewer pipe

and I needed to complete an easement by the end of the day. I explained to Tyler that an easement

could not be completed in one day, that my court calendar was full until Friday, and that I would be out

Friday to take a look at the prospective easement.

PO Box 420, 500 Main Street, Carthage, IL 62321, Phone: (217) 357-3916, Fax: (217) 357-3682

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On April 15th, I was also contacted by Board Members Harold Stuckwish and Pat Cramer. Both of them

stated concerns that the project costs were over $30,000 and that they feared that the law had not

been complied with. Harold indicated that he would bring me the estimates/payments later in the

afternoon and ask that I look into the matter to make sure that we were in compliance with the law.

On Friday April 17th I went to the ambulance barn and Spoke with Tyler Wilson regarding the placement

of the easement. He explained the approximate placement of the proposed 8" sewer pipe. The

proposed pipe would span some 600 feet across the rear of an adjacent land owner, across to Carthage

City right of ways, and bore underneath Illinois Route 94. I explained that the project would require

much more that an easement. I explained that the easement would require the City of Carthage

annexing the county property into the city, a survey, several easements, and a permit by the State of

Illinois to bore underneath Illinois 94. Tyler asked if this could be completed in the next couple of days

and I explained that it could not. I also explained that it would take a full county board vote to acquire

land rights which had not been done. In conversation with Tyler I asked him how much the project

would cost to complete. He indicated that he did not have totals and he would get back to me by the ------

end of the day. I asked Tyler whether the project would exceed $30,000 and he indicated that it would.

On my way back to the office, I was contacted by Marc Huston via telephone. He indicated that he had

heard that I had concerns with the project at the ambulance barn and asked me to explain my position. I

explained the legal requirements as I had previously done. I indicated that since the county board had

not declared the project an emergency, if the building cost exceeded $30,000 it required the taking of

competitive bids. He explained that they were not aware of the plumbing issues until they had fixed the

electrical issues and therefore the project should be divided by project. I explained that at this point I

really did not have all the information I needed and I would get in touch with him when I did.

Shortly after returning to the office Harold brought me the information that he had been provided with

in the Health and Miscellaneous meeting. I returned to the ambulance barn and confirmed with Tyler

which projects had been completed. Tyler explained that the following work had been completed:

(1) $295.00 Great River Ready Mix ..

(2) $4,624.10 Homestead Lumber -

(3) $2,315.60 Conner Supply ..

(4) $7, 770.00lPS Construction·

(5) $8,000.00 Hutcherson Plumbing -

(6) $8,311.00 Tri-State Electric·

(7) $4, 700.00 Tri-State Electric ...

(8) $3,218.00 Tri-State Electric-

(9) 683.00 Tri-State Electric -

TOTAL COMPLETED$ 39,916.70

Tyler also indicated that there had been a percolation test completed by Dave Walker's brother and he

did not have a bill for that yet but they work had been completed. There is also a bill from Lowes in

Quincy for tile in the amount $158.39 that has not yet been paid but the material have been purchased.

Tyler also indicated that supplies from Morton Building were purchased but he had not received bill yet.

Tyler also Vidicated that the following projects had either been started or approved but not yet started:

(1) $6,628.25 JPS Construction t. .. ' ' ..,.1, J )tJ u1.a.. $ ; / '1

(2) 1,250.00 JPS Construction· I t; 11~ o o (3) $12,500.00 Jefferson Plumbing. ~

(4) s11,128.00Tri-state Electric~U'\.i.Jr 'J.. tt50 (5) $643.00 Tri-State Electric ~ .. (6) $6,721.00 Tri-State Electric.- c_o (7) $7,936.00 Tri-State Electric ..

TOTAL $47.406.25

Total Project $87,322.95 (does not include percolation test or material from Lowes or Morton Building).

I asked Tyler if the Board Members were made aware of the electric issues and the plumbing issues at

the same time and he indicated that they were. He then supplied me with a memorandum that he had

authored to the Board in February that indicates that the building was suffering from both electrical and

plumbing issues. This pre-dates when the wonf"w-as..star:ted.

I asked Tyler how the contractors that completed the work were selected and the procedure for

estimates. Tyler explained that Board Member Dave Walker instructed him on what contractors were to

be used and Tyler called the contractors to have them give estimates. He indicated that Dave gave him

instructions to make sure the bids were turned in, if possible, not to exceed $10,000.00. I asked Tyler

whether there was ever a discussion of a special board meeting to declare the project an emergency.

Tyler explained that there was a discussion by Cary Gray of the need for.a special board meeting to

declare the situation an emergency but he had been told that such a meeting was not required.

I spoke with Marc Huston three more times on Friday via telephone. He indicated that the projects

~~s~ho~u~l~d;b~e~c~o~n~s·~,d~e~re~d:;s~e:£p~a~ra~t=e~f~o~r t~h~e~p;!u~r~~~~~e~t~it~iv~e~b~id~d~i~n!)g However, these projects a II involve work to be done at the ambulance barn at the same time o correct issues. This would be similar

to making the argument that if the county were to build a school with a $15 million dollar budget to

refuse to engage in competitive bidding because the project was bid per classroom or per profession

(electrical/plumbing) . This is clearly not the intent of the law. He also asked if we could declare the

situ~tion an emergency now. The answer is no. You cannot declare a situation an emergency after the

work has already been completed.

In interpreting the bidding procedure law, the court said the following:

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"The purpose for requiring public bodies to engage in compet itive bidding are to

invite competition, to guard against favoritism, improvidence, extravagance,

fraud and corruption and to secure the best work or supplies at the lowest

possible price practicable .... The statute expressly provides that contracts be

awarded to the " lowest responsible bidder" after due advertisement. It is the

public body which specifies the terms of the contract for which it solicits bids and

the criteria which bidders must meet in order to be considered a responsible

bidder. In proper circumstances a contract may be awarded to the one who is not

the lowest bidder, where this is done in the public interest, in the exercise of

discretionary power granted under the law, without fraud, unfair dealing, or

favoritism, and where there a sound and reasonable basis for the awards as

made ... " Compass Health Care Plans. V. Board of Education, 246 Ill. App. 3d 746

(1st Dist. 1992)(Citations omitted).

I have attached the material I was supplied by Tyler Wilson and Harold Stuckwish to this

memorandum for your review.

At this point the County is in an awful legal position for the following reasons:

(1) The County entered into contracts with contractors. As we discussed at length during

the hospital negotiation there are essentially no terms to these contracts and the

terms that were supplied by the contractors are, of course, to their benefit. These

estimates/proposals/contracts were never legally reviewed and expose t he county to

litigation at a variety of levels.

(2) As discussed by the appellate court, it is the duty of the County Board to declare

which bidders would be responsible bidders. This could have been limited by

requiring licensure, insurance to a certain aggregate amount, bonding, indemnity

provisions if contractors did not pay their employees prevail ing wage and their

employees sued the county, and a variety of other terms that would be beneficial to

the county. However, this was not done. This exposes the county to a suit for fai lure

to engage in competitive bidding by a variety of people that claim they are

contractors and could have performed the work that was done at the ambulance

barn.

(3) The work that was completed at the ambulance barn needs to be paid for as the

contractors have completed the work. If we do not pay for the work completed we

face the real possibly of being sued for not paying for the work. If we pay for the

work, the projects exceed $30,000 and require us to engage in competitive bidding

or declare an emergency, which was not done, and exposes us to a variety of law suit

from aggrieved contractors.

(4) The $47,000, a portion of which may have been started, exposes us to additional

litigation and may not be of the type that could be declared an emergency and

exposes us to even further litigation.

(S) If the information that Tyler provided me (i.e. that the contractor were hand-picked

by board members and that the bids were manipulated) this could exposes the

county to punitive damages for willful and wanton disregard of the competitive

bidding statute. If this is correct, punit ive damages would not be covered b

liability insurance policy.

The purpose ce rs not to question whether the projects were in the best • interest of the county or whether an emergency existed. The purpose of this memorandum is

also not to question the contractors chosen (this memorandum assumes that the best

contractors in their respective trades were chosen). The purpose is to explain to the board

members that there were legally viable options available to the county board in that the

county board could have called a special meeting, declared the situation an emergency, and

had the work completed without the bidding procedures to prevent liability but it was not

done even despite having knowledge of the law. I have no explanation for the ac;tiens taken

~~~~~in~th~i:s~c~as~e:·~l~b~e~lie~v~e~th~a~t~it~i~s~im~p~e~ra~t~iv~e~t~h~a~t~a~ll~b~o~a~rd~m~e~m.!1£be~r~s~h~a~v~e~k~n~o~w~le~d~g~e~aufLwwahaat~~~~~~~~~~~ occurred here so that they may make a reasoned and informed decision on how to proceed

at this point.