Wednesday, April 17, 2013

Six Months Later in the DuPage Forest Preserve IT Criminal Case -- 317 Felony Counts of Nothing in Particular

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Nearly six months after filing 317 felony counts against two former Information Technology (IT) department employees of the DuPage Forest Preserve District and a former vendor, the DuPage County State's Attorney's office has yet to produce the bill of particulars -- the formal, detailed, written complaint of charges -- as required by law (725 ILCS 5/111-6).

Citizen watchdogs speculate that this delay involves the numerous political ties and lack of legitimacy of those behind the "secret internal investigation" initiated by the Forest Preserve -- a move which may have been prompted by a purchase order epiphany, as CountyLeaks questions today. Findings from this "investigation" were presented to the State's Attorney's office in November 2011. The bill of particulars would likely rely heavily on these findings.

The District's former director of its IT department, Mark McDonald, and the department manager, David Tepper, were each charged with 140 felony counts, while a third man, Arif Mahmood, who worked for Alamach Technology, Inc., an IT vendor for the District, was charged with 37 counts, in an alleged scheme stealing $150,000 from the Forest Preserve.

CountyLeaks was first to report on the staggering number of charges handed down by a grand jury on Halloween 2012Lending perspective to these numbers, former Gov. George Ryan had 18 felony indictments in 2003 and former Gov. Rod Blagojevich had "only" 16 counts in 2009. 

Yet there was no customary press conference immediately following the grand jury's 317 felony counts. Three days earlier, CountyLeaks explained at length the political ties between the Forest Preserve, JRM Consulting and the State's Attorney's office. CountyLeaks found the felony indictments during periodic searches on the court clerk's website after the well-reported arrests in September.

The majority of felony charges listed against McDonald and Tepper include "accepting a kickback," "unlawful participation," "official misconduct -- performing a forbidden act," and "theft by deception with intent to deprive." Charges against Mahmood consist mostly of "accepting a kickback" with one count each of "theft by deception with intent to deprive" and "official misconduct -- accepting bribe to influence public officials, public employees, juror or witness." 

Superseding indictment charges of "conspiracy" were also issued for theftunlawful participation, and kickbacks between Feb. 25, 2010 and Oct. 25, 2011 "at and within DuPage County." 

Despite the 149 "accepting kickback" felony counts, there are no charges of providing kickbacks, suggesting that at least one other party has yet to be disclosed.

Case # 2012CF001737

Illinois, New York and Virginia require a bill of particulars in criminal proceedings, if requested. The Illinois Code of Criminal Procedure reads: When an indictment, information or complaint charges an offense in accordance with the provisions of Section 111-3 of this Code but fails to specify the particulars of the offense sufficiently to enable the defendant to prepare his defense the court may, on written motion of the defendant, require the State's Attorney to furnish the defendant with a Bill of Particulars containing such particulars as may be necessary for the preparation of the defense. At the trial of the cause the State's evidence shall be confined to the particulars of the bill (725 ILCS 5/111-6).

These formal, detailed charges must be produced: within a reasonable time after arraignment and shall specify the particulars of the offense necessary to enable the defendant to prepare his defense (725 ILCS 5/114-2).

The bill of particulars is the case. Without one, the entire case could be dismissed. Some attorneys claim the State's Attorney' office has maxed out the "reasonable time" frame and that their request for oral argument to not produce one six months later "unheard of".

The next hearing is scheduled for April 18th. 

"Are All Users on Archiving?"

For years, citizens had been demanding answers from the Forest Preserve and not always getting them -- especially answers regarding the District's finances. By the end of 2011 when news of the the internal investigation of the IT department broke, the frustration intensified into the perfect storm. 

Added to the list of Freedom of Information Act (FOIA) demands were all invoices and payment records of Alamach Technology, Inc., owned by Arif Mahmood, who was under investigation and would later be indicted for 37 felony counts. The Forest Preserve refused to release these public records, stating that the invoices and payment records were part of an ongoing criminal investigation. 

Citizens disagreed. After all, they said, the Board had been voting regular payments to Alamach for two years, according to meeting packets and minutes. Invoices and purchase orders totaling nearly half a million dollars should not be exempt, they asserted. Several people took the District's FOIA denial to the next level -- the Illinois Attorney General's Public Access Counselor for a review.

The Attorney General's office sided with citizens. The Daily Herald's Bob Sanchez reported on portions of a May 4, 2012 letter written by Asst. Attorney General Steve Silverman: "...the assertion that disclosure of the records would interfere with the state's attorney's ongoing criminal investigation is largely conclusory and unsupported by facts."

Instead of sending the records, the District sent a cop.

Shortly after the District received the letter, Forest Preserve police officer Kathy Murphy Nowak, daughter of Board Commissioner Marsha Murphy, was dispatched to the home of the citizen who had requested a review -- a decision described as an intimidation tactic. Listen to her story here:

The Forest Preserve then contacted the State's Attorney's office for assistance to deal with the Attorney General's letter, according to attorney invoices. In mid-June, the State's Attorney was granted a temporary restraining order against the Forest Preserve, prohibiting the release of the records. 

The DuPage County State's Attorney's office had officially declared war with the Illinois Attorney General's office.

The restraining order was set for status on Oct. 1st -- the exact day and time that McDonald, Tepper and Mahmood were in hearings, each in different court rooms. The TRO was lifted, yet it took another two weeks for the Forest Preserve to respond. Some of the records designated as being part of the "ongoing criminal investigation" had to be dug out of storage.

Because there had been such a long battle to obtain the Alamach records, even going so far as police intimidation, citizen watchdogs believed one of two things -- either it was all a muscle-flexing game or there must be something in the records worth hiding.

Early February 2011, a purchase order for $17,400 for e-mail migration got the attention of somebody. A hand-written note on the p.o. reads, "Are all users on Archiving?" 

Watchdogs wondered: Did someone who once believed that information which had been deleted have concerns when learning it still existed off-site? If yes, what would this information be?

This simple five-word question and its timing may provide a clue for a string of detached events before, during and after February 2011. 

(Click HERE for an in-depth timeline.)

During the next 12 months after the termination of McDonald, Tepper and Mahmood, the District would quickly take possession of Alamach's server and all of its data; destroy and dispose public records during a criminal investigation and prosecution; hire a new finance director; retain a PR spin firm with close ties to the State's Attorney's office; accept the abrupt resignation of the District's executive director and then pay him $50,000; bring in a new financial auditor; contract a new attorney to provide legal advice; move all of their $250+ million in reserve funds and investments to the Wheaton Bank; fail to present monthly and quarterly treasurer's financial reports for Board approval; refuse to meet with concerned citizens; intimidate, harass and interrogate citizens and volunteers; and deny FOIA requests for records relating to the Alamach matter.

Background on McDonald, Tepper & Mahmood

Prior to his termination in November 2011, Mark McDonald had served as director of the Forest Preserve's IT department for nearly a decade. David Tepper, who was the department's manager, had been reporting directly to McDonald for five years until his resignation the same month.

While McDonald was working at the Forest Preserve, he needed help overhauling the entire IT server system; McDonald contracted Tepper from Integrated Design Solutions (IDS). Eventually Tepper was employed by the District. According to the Daily Herald, the Forest Preserve says it does not have equipment billed six years ago by IDS before Tepper was on staff. McDonald and Tepper worked side jobs under the assumed name IDS after Tepper joined the IT staff.

IDS obtained subcontract work from Alamach Technologies, Inc. of Carol Stream, owned by Arif Mahmood, who once worked for Microsoft. Beginning in December 2009, Alamach directly assisted in the overhaul. This state-of-the-art IT project was described in a Microsoft Case Studies article: By switching from VMware ESX to the Windows Server 2008 R2 operating system with Hyper-V technology, the District was able to expand its use of virtualization, consolidate 35 physical servers to 5, and reduce server costs by 15 percent annually. It has also eliminated VMware licensing of U.S. $20,000 a year.

In addition, Alamach provided IT data storage, disaster recovery and e-mail backup for the Forest Preserve off-site in compliance with the Federal Regulations on Civil Procedures and the 2002 Homeland Security Act, billing $12,000 monthly beginning in December 2010. (The first purchase order for this work has the hand-written question: Are all users on Archiving?Alamach is accused of over-billing and providing kick-backs to Tepper and McDonald through IDS for this portion of the work.

After signed off by the finance department and executive director, monthly invoices from Alamach were approved for payment by the Forest Preserve Board for 22 consecutive months from January 2010 to October 2011, including the duration of the "secret investigation", totaling $488,000.

CountyLeaks Asks Many Questions:

Legal scholars, will DuPage County be setting legal precedent by having the first criminal trial in Illinois move forward without a bill of particulars? What will the verdict be? Guilty as not charged?

Or, if the State's Attorney's office fails to produce the bill of particulars, will the entire case get tossed out? To avoid embarrassment, will the State's Attorney's office make a last-ditch effort for cop a plea?

Why did the Forest Preserve pile on with a civil lawsuit without any bill of particulars and before a verdict?

Is Tepper's attorney urging the three defendants to stick close together using the same winning DuPage Seven strategy? Not only did those defendants go free, but Tepper's attorney and Joe Birkett helped secure free legal expenses -- paid in advance by taxpayers. None of DuPage Seven had incentive to break the chain and when it was all over, the defendants received promotions, appointments and neat stuff. All for one and one for all! (Required reading assignment for legal scholars everywhere HERE.)

Btw, why are some defense attorneys so quiet instead of their usual style of trying the case in the media? Where are the colorful adjectives?

Has this become DuPage County State's Attorney Berlin's Rolando Cruz case? 

Following the lead of his predecessor, will Berlin be wearing a "D7" pin on his lapel in the court room?

Should the State's Attorney's office have handed this case off to Club ILSAAP for special prosecution? Boy, that would have made CountyLeaks feel so much better...

Seriously guys, a GPS ankle bracelet on McDonald? Really? Then he's charged $300 per month for this "service"? And you wonder what motivates CountyLeaks?

Who sent Forest Preserve police officer Kathy Murphy Nowak, daughter of Forest Preserve Commissioner Marsha Murphy, to check out the property of a private citizen fighting for the release of Alamach invoices and payment records via FOIA? What secrets are contained on these records? Who at the State's Attorney's office has ties with the Murphy family?

Is CountyLeaks' spinning-radar correct in detecting that this case is really about something else, something much bigger than McDonald, Tepper and Mahmood? Because anyone who has followed the Forest Preserve the past decade knows that conflicts of interest, pay-for-play contracts, over-billing and side jobs are no big deal, right? Just part of the culture... 

In the grand scheme of things, is this about much bigger financial losses...? About those non-existing financial statements...?  About the finance department's refusal to meet with DuPage United or even answer their questions...? About Oak Meadows...?  

And/or is this about the electronic data which had been stored off-site by Alamach? Was any of this data destroyed during the criminal investigation? Was this data "too politically sensitive"?  

Has the State's Attorney's office even bothered to look beyond what was presented to them by the Forest Preserve? Are the correct people being investigated and prosecuted here?

How come no one ever brings up Forest Preserve Commissioner Joe Cantore's former business relationship with one of the defendants working for IDS, only to later claim he didn't know anything about IDS? Or are they saving that gem for the precedent-setting trial with no charges? Surely it was disclosed? Does CountyLeaks have to do ALL the work here? Sheesh...

How could the Forest Preserve's finance department, executive director and Board sign off on payments to IDS and Alamach for years without ever asking who these guys were? Is it because they already knew? Or were they all born yesterday?

Does all of this have anything to do with the hand-written question on the purchase order: Are all users on Archiving? Who wrote that question and why?

Are all users at the Forest Preserve on email archiving? If so, why are the e-mails between JRM and Forest Preserve employees unable to be located?

Why did Dean Westrom "retire" suddenly from an awesome Forest Preserve job with decent salary and benefits, yet still markets himself on LinkedIn?

Why did former Forest Preserve executive director Brent Manning abruptly resign in May 2012 without the 90-day notice required by his contract? Why did the Board of Commissioners need to give Manning a generous parting gift of $50,000?

Why didn't the State's Attorney's office order that no public records be destroyed at the Forest Preserve during criminal proceedings, paper or electronic?

Was JRM Consulting licensed by the State to conduct a forensic investigation? Were the subjects of the investigation properly notified they were about to be investigated?

Did the "secret internal investigation" process conducted by the Forest Preserve and JRM Consulting comply with all federal and state laws? Were McDonald and Tepper denied due process? Did the State's Attorney's office accept evidence which was obtained illegally?

Did the State mention to the grand jury that JRM Consulting wasn't a licensed investigative firm and that there were multiple political ties among the Forest Preserve, JRM and the State? Or did all that land on the editing room floor before they arrived at the 317 felony counts?

Why did Pat Durante's son, Vince, play a starring role in the investigation, when he wasn't even an employee of JRM Consulting? What authorized him to have access to equipment and information at the Forest Preserve if he wasn't even an employee of JRM, just a politically-connected freelancer? Did JRM overbill for Durante's services for $150 per hour? Durante is usually paid $39 per hour for his full-time work at IDOT, right?

Speaking of the Forest Preserve hiring politically-connected people, what's with Troy Clampit in the IT department? Why was he brought in March 2011 shortly before the "secret internal investigation"? How does Clampit juggle his full-time job at the Forest Preserve while doing hundreds of thousands in political work? Did Cronin ask Dewey to find a place for his campaign worker because if the County hired him, it might look bad?

By the way, how much is all this mess costing tax payers? How much more to come? Or does everyone work for free like CountyLeaks?

Was Reverse Spin brought in for their expertise in deflecting wrong doings of their clientele, while courageously working with bullies in state's attorney's offices to investigate and prosecute others who might expose them? Why would the Forest Preserve require game changers? What was the real crisis? McDonald or Dewey?

Does Paul Darrah still have Reverse Spin on speed dial?