Which is Worse -- The Incompetence or the Cover Up? Both are Inexcusable!

Tonight at 5 pm (Monday, September 11, 2017), there will be a meeting of the D181 Bond Referendum Review and Accountability Committee.  (Click to open Board Docs for Committee Meeting.) Immediately following that meeting, the full Board of Education will convene its Regular Business Meeting, starting with executive session before open public session. (Click to open Board Docs for Regular Business Meeting.)  

We hope that by the end of the meeting, the BOE will have answered the following questions:

Was there Incompetence?  Was there a Cover Up?  Which was worse?  Should anyone be held accountable?  

By now our readers are aware that Accountability Committee members Meeta Patel and Jennifer Burns have disclosed 3 smoking gun documents dealing with the premature publication of the Referendum Notice. In our opinion, these 3 smoking guns may implicate D181's Superintendent and require swift disciplinary action by the full Board of Education. In our opinion, the Board of Education must determine if these documents evidence administrative incompetence, and if the failure by Dr. White to disclose 2 of them  to the Board of Education for nearly one year is tantamount to a cover up.  

Incompetence?

Let's review these 3 smoking guns which were produced by Dr. White to the Accountability Committee members on August 9, 2017.

Smoking Gun 1: August 19, 2016 letter from Attorney John Izzo to Dr. White.  (Source: Click and go to P.24 of the 8/9/2017 Summary: Legal Notice and Related Procedures)  This letter provided a checklist of election procedures that needed to be followed in connection with the HMS Referendum.  Of significance is item #3 on the checklist which stated:

"Notice of the proposition to be submitted at the Election is to be published by the DuPage Election Commission and the Cook County Clerk.  The Notice must be published not earlier than Saturday, October 8, 2016 and not after Friday, October 28, 2016, in the Hinsdalean, which is the newspaper having general circulation in the District designated in the resolution.  We strongly suggest that you make certain that the publication of the Notice is made in an accurate and timely manner."

In our opinion, when Dr. White received this letter from the Board of Education/district's lawyer, he was put on notice (no pun intended) of his fiduciary responsiblity to take all necessary steps to ensure the accuracy and timeliness of the required Referendum Notice publication by the DuPage County Election Commission.

Smoking Gun 2:  August 23, 2016 email from the office of the Superintendent to Attorney Izzo.  This letter acknowledged that the superintendent's office was in receipt of the checklist and it's responsibility to ensure the accurate and timely publication of the Referendum Notice by the DuPage County Election Commission.  (Source:  Click and go to P.26 of the 8/9/2017 Summary: Legal Notice and Related Procedures)  Of significance is item #3 which stated:

"Our office will ensure that notice of the proposition to be submitted at the election is to be published by the DuPage Election Commission and the Cook County Clerk.  The Notice must be published not earlier than Saturday, October 8, 2016 and not after Friday, October 28, 2016, in the Hinsdalean, which is the newspaper having general circulation in the District designated in the Resolution."

Smoking Gun 3:  October 3, 2016 letter to the District from the Dupage County Election Commission.  This letter informed the office of the superintendent that the Referendum Notice would be published beginning the week of OCtober 3, 2016.  (Source:  Click and go to P.34 of the 8/9/2017 Summary: Legal Notice and Related Procedures) 

Specifically, the letter informed the district that:

"The posting of the notice is to occur no later than ten (10) days prior to the election.  This is in addition to the requirement to publish notice of the referendum once in a local community newspaper having general circulation within the political subdivision.  This office is fulfilling that obligation with the publication insert appearing in all the local newspapers throughout the county beginning the week of October 3, 2016."

In our opinion, this letter should have sounded alarms for Dr. White, since it suggested that publication of the Referendum Notice would occur as early as the week of October 3, which was too soon, since the first date it could legally be published was on October 8.

In our opinion, these 3 documents clearly show that the publication error by the DuPage County Election Commission could have and should have been caught by Don White BEFORE it occurred.  The district's attorney informed him on August 19, 2016 that publication COULD NOT take place before October 8 and told the superintendent that he should make sure that the DuPage County Election Commission published the notice in a timely and accurate manner.  Less than one week later, the office of the superintendent confirmed its understanding of the items described in the August 19 checklist. There is, therefore, no doubt that Dr. White knew he had a responsibility to confirm the dates of publication with the DuPage Election Commission and make sure they made no mistakes.    

All it would have taken, in our opinion, was one phone call to the DuPage Election Commission upon receipt of the August 19 letter to ask them on what date the notice was going to be published.  Had the Commission told him that it was scheduled for any date prior to October 8, 2016, he should have told them that according to the district's attorney, the date was before the legally required window of time, and he should have asked them to correct the mistake before they made it.  

Even if he didn't make that phone call upon receipt of the 8/9/2016 letter from Attorney Izzo, upon receipt of the 10/3/16 DuPage County Election Commission's letter, it is our opinion that he should have cross checked the date the Commission said publication would begin, against Mr. Izzo's letter.  Had he done that, it is our opinion that he would have realized that the Notice was potentially going to be published too early and called the DuPage County Election Commission to have them confirm the specific dates of publication.  If the Commission told him that publication was going to take place on any date before October 8,  he should have told them that according to the district's attorney, the date was before the legally required window of time, and he should have asked them to correct the mistake before they made it OR run the notice a second time within the required window of time.  Since the window did not close until October 28, the Commission would have had 25 days to ensure timely publication, even if it was a duplicate publication.

Unfortunately for the District, it appears that Dr. White did not make any calls to the DuPage County Election Commission between August 19, 2016 and October 3, 2016.  While the office of the superintendent acknowledged his responsibility to ensure timely and accurate publication by the DuPage County Election Commission of the Referendum Notice, it is our opinion that he did not fulfill his responsiblity.

This, in our opinion, was incompetence.  Will the Board of Education reach a different conclusion?

A Cover Up?

Shortly after the election, the District's Bond Counsel realized that the Referendum Notice had been published too early by the DuPage Election Commission.  There is no dispute that the Election Commission had a legal responsibility to publish the Notice between October 8 and October 28, 2016 and they blew it by publishing it too early. But Dr. White, in our opinion, had a fiduciary responsiblity to ensure that the DuPage Election Commission not make such a mistake.  And he acknowedged his responsbility in a letter to the District's attorney.  And then, in our opinion,  he too blew it by not acting on the attorney's "strong suggestion."

In our opinion, as a result of Dr. White ignoring the August 9, 2016 checklist on the Referendum Notice publication requirements, the following is a partial list of the fall out that hit the District:

1. District's Bond Counsel refused to begin selling the $53.5 million in referendum bonds as scheduled. 

2. Once this delay and the reason for  it became public, 5 community members cried foul and sued the district claiming that as a result of the premature Referendum Notice publication, the election results were invalid.  

3.  These two actions caused the delay of the HMS project, and the resulting expenditure of thousands of dollars in attorneys fees by the District to fight the litigation and to seek curative legislation in Springfield.

4.  They further resulted in the District borrowing $3 million from its reserves to pay for pre-construction costs it wanted to continue incurring to try and keep the HMS project alive.  The $3 million, however, was at risk of permanently being lost if the litigation couldn't be resolved in a resonable period of time.

5.  The litigation caused divisiveness and hostility between district residents who were justifiably furious that the project was delayed and the plaintiffs who were publicly shamed by them.

6.  The start of the HMS project was delayed until June, excavation of the site didn't even start until August and the promised August 2018 completion and opening of the new HMS has been delayed until January 2019.

In our opinion, none of these detrimental things would have taken place if Dr. White had followed the instructions in the August 9, 2016 letter, because he would have caught the Election Commission's error and the Referendum Notice could have been published in a timely and accurate manner.  

As all these negative consequences of the premature publication were taking place -- between December 2016 and July 2017 --  it appears that Dr. White failed to tell the Board of Education that he had had a checklist all along, that if followed would have prevented the DuPage Election Commission's error or allowed time for a correction.   Instead, he kept silent about the existence of the August 9 and August 23, 2016 correspondence from and to the Board of Educations/District's Attorney.  Not only did Dr. White keep silent, but it appears that so did the Board of Education/District's lawyers.  Neither Dr. White or the lawyers told the Board of Education about the August 9 and August 23 letter and email.  Moreover, not once in all of the public meetings that were held after the Bond Counsel discovered the publication mistake and refused to sell the bonds, did Dr. White or the attorney reveal to the Board of Education or the public that Dr. White had information as of October 3 that the DuPage County Election Commission might be about to make a timing mistake on the Notice Publication.  Not once in all of the public meetings that were held did Dr. White or Mr. Izzo disclose to the Board of Education or the public that the superintendent failed to follow Mr. Izzo's checklist and ensure timely and accurate publication of the Notice by the Election Commission.  

Then to further exacerbate their silence, after six months of district wide chaos and devisiveness resulting from the premature Notice publication, the litigation was settled and the Accountability Committee was established to review Referendum process concerns.  The Accountability Commitee held its first meeting on July 24, 2017, nearly one year after Dr. White received the August 9, 2016 checklist from Attorney Izzo.  At no time during that meeting, did either Dr. White or Attorney Izzo (who was present) disclose to Committee Members Burns, Giltner or Patel, the existence of the 2 August 2016 letters or Dr. White's failure to take action as listed in the August 19 letter.  During that meeting, according to Ms. Patel's recent report to Dr. White,  the committee "asked if there was a checklist available to the district to ensure that proper procedures are followed."  According to Ms. Patel, neither Dr. White or the attorney disclosed the existence of the August 9 checklist. 

After the Accountability Committee tasked the adminstration with pulling documents together for their review on the process issues they intended to address in their report, on August 9, 2017, the administration produced hundreds of pages to the committee members to review.  The adminstration also provided "Summaries" of 9 issues, including the Referendum Notice publication issue, which included charts listing and describing related documents.  

Yet the Summary of the Referndum Notice issue that was provided to the committee members utterly failed to flag the August 9 and August 23 correspondence for what they were -- a checklist and acknowledgement of a checklist. In fact the brief descriptions of those documents provided to the committee are, in our opinion, clearly misleading and in no way identify the real content of the correspondence.  But don't take our word for it.  Click to read the Summary of the Referendum Notice Publication issue.  Pages 2 of the summary provides the following descriptions of the August 9 and 23 letter/emails:

"8/19/16 Izzo letter to White.  John Izzo requested information related to the Board of Education approved bond resolution."

"8/23/16 Duggan letter to Izzo.  Jean responded to the 8/19/16 request for information from John Izzo." 

Nothing in the description of these 2 documents in any way flags the fact that Dr. White had been sent a checklist by the Board of Education/District's attorney, that it included information on the Notice publication requirements, that the attorney "strongly suggested" that  Dr. White ensure the timely and accurate publication of the Notice by the Dupage Election Commission AND that his office acknolwedged its understanding of the checklist items.  In our opinion, any reasonable person will perceive these brief descriptions as intentionally misleading.

But even after producing the actual documents, which thankfully for the District's residents, Committee Members Burns and Patel took the time to read and express concerns over, Dr. White continues to insist that there was no checklist.  Click on the link to open up a document dated September 4, 2017 titled Member Responses and Adminsitrative Follow Up.  Beginning on page 10, Dr. White provides some responses to the concerning questions asked by Committee Members Burns and Patel and the responses are baffling!

On Page 12, in response to Ms. Patel's question about why neither Dr. White or Attorney Izzo told the committee at the first Accountability Committee Meeting on 8/24 about the existence of the August 9 checklist, Dr. White says "the District does not have a checklist."  It is beyond comprehension how in light of the clear August 9, 2016 checklist, Dr. White still insists that it is not a checklist.  Moreover, this flies in the face of Attorney Izzo's response that after the 8/24/17 meeting, HE resubmitted to the administration a copy of the August 9 letter since it was responsive to the Committee's request for production to them of any checklist.  Specifically he states at P. 12:  

"When I did resubmit the August 19, 2016, letter to this Committee, it was only in the context of the question about whether I had some sort of checklist."

Yet this statement comes after Attorney Izzo first explained that he did not tell the Board about the August 9 letter to Dr. White earlier because:  "During all of that, the District was in possession of the letters exchanged in August 2016 and I was not asked about them."

In other words, he didn't need to tell the Board of Education because "the District" was already in possession of the letters exchanged in August with Dr. White and his office.  Really?

Let us not forget that the District's attorney is actually the attorney for the Board of Education as clearly specified in Board Policy 2:160.  (Click to open  Policy 2:160)  It is, in our opinion, inexcusable that after Bond Counsel refused to sell the bonds because of the publication error, that the BOARD's attorney failed to inform the BOARD of the existence of the August 2016 correspondence with Dr. White.  And as chaos and litigation reigned in D181 because of the publication error, it seems logical that the BOARD's attorney should have at some point in the last 10 months alerted the BOARD of the existence of the August 2016 letters.  But he did not. To now state that he did not do so because the District was already in possession of them makes absolutely no sense.

In our opinion, neither of the explanations given by Dr. White or the Board's attorney pass the smell test.  And beyond the illogical explanations given, what confounds us even more is the following "response" that Dr. White repeats over and over again throughout the Administrative Response:

"No administrative response is necessary at this time as this seems to be a conclusion statement and not a request for additional information or a question."

Much of Committee Member Patel and Burns' questions about the publication Notice issues and the August 2016 correspondence are prefaced with a chronology and statements of what they believe transpired.  Yet Dr. White did not feel it necessary to even acknowledge or question these statements?  Instead, he chose to remain silent -- again?

What is clear to us is that the August correspondence should have been disclosed to the Board of Education and to the public months and months ago.  Instead, Dr. White - the recipient of the August 19, 2016  letter from Attorney Izzo -- failed to inform his BOSSES -- the BOE -- of its existence or that of the August 23, 2016 response until almost one year later -- August 9, 2017.  And even now, he refuses to admit that he had a checklist all along that could have prevented the HMS debacle from its inception.

In our opinion, there is only one description for that kind of behavior -- a cover up. Will the Board of Education reach a different conclusion?

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So we are back to our initial questions.  Was there Incompetence or a Cover Up? And if so, which is worse? In our opinion, both are inexcusable.  Now it will be up to the Board of Education to sift through this mess, reach its own conclusions and determine if the Superintendent should be held accountable for his inaction, subsequent silence and the resulting detrimental impact to the district and community.  

We will be listening tonight to the Accountability Committee meeting and the Regular Business Meeting and we urge all of our readers to either attend in person or listen to the live stream.  D181 deserves full disclosure and full transparency on this issue -- something that has been sorely lacking since the start of the referendum process.  We hope the Board of Education take swift action to determine the facts and the truth and then hold Dr. White accountable.