Illegal Investigation? Fact-Checking Orland Park Mayor's Claims

ORLAND PARK, IL — The release last month of Orland Park's internal investigation of bidding irregularities involving Mayor Keith Pekau has put the mayor on the defensive, and he is waging a public war to protect his reputation.

The investigation did not find evidence of wrongdoing but recommended the village continue its investigation. However, Pekau has published no fewer than four email newsletters since then to campaign supporters that defend his actions and accuse former village manager Joseph La Margo, who opened the investigation in 2018, of misconduct. He also has held a news conference about the report, known as the Jones Day report, and made all its findings public.

But the facts, as Pekau has presented them, do not always add up. This has muddied an already complex situation that plagues Orland Park. On Monday, for example, interim village manager Tom Dubelbeis warned trustees that finding his replacement will take longer than usual because "high quality" applicants have not been applying for the job as a result of the media spotlight shining on Orland.

Patch identified eight major claims Pekau repeats about the Jones Day investigation and La Margo's role. We have fact-checked or clarified the statements using public documents and interviews with leading legal and ethics professionals in the field.

The background

The four-month Jones Day investigation began in January after a public works employee told La Margo, who as village manger was in charge of staff and operations, that two vendors, Mid-America Tree of Mokena, and GroundsKeeper Landscape Care LLC, regularly came in as the lowest bidder with a margin of only $25 below competitors. Pekau owned GroundsKeeper Landscape Care LLC and contracted with the village until he sold the business in February 2019. La Margo hired an outside law firm called Jones Day to conduct the review. During the investigation, other allegations emerged involving:

• A 2012 project known as the Emerald Ash Borer tree removal contract, or EAB;
• Pekau's introduction of his company's new owner to village officials;
• Pekau's financial interests with Horton Insurance Group, the village's health insurance provider; and
• Reviews of irregularities in Mid-Tree America and Groundskeeper contracts.

The full story outlines the history and timeline.

Pekau fired La Margo in May while the report was being edited by Jones Day and before the findings could be brought to the board of trustees. La Margo was fired without cause and both he and Pekau publicly acknowledged they agreed it was time for La Margo to move on. The village then conducted a second review that Pekau and Dubelbeis said "completed" the investigation. It is known as the Mitchell report because Joseph Mitchell, Orland's interim assistant village manager, conducted it.

The findings

Jones Day investigators suggested that the village continue looking into Pekau's former landscaping business and the financial interests he holds with two village vendors. They also said the village needed to fix its own flawed bidding, purchasing and ethics policies.

Investigators added that they did not gather enough evidence to show whether the village broke state bidding or ethics laws in the cases they reviewed. What they found, they said, was that the incidents "raise questions," leading them to recommend that the village continue its investigation. You can find the recommendations on page 10; however, some others are inserted into the findings throughout the document.

The Mitchell report also said that no laws were broken, or that Pekau had no conflicts of interest with the village. It recommended strengthening the village's ethics and purchasing policies. Those recommendations begin on page 2. This report is intended to close the book on the Jones Day investigation.

The Claims

Pekau made the following claims in email, a news conference and a public meeting. They are copied verbatim. Patch linked to source documentation where available.

Claim: Joe LaMargo filed the complaint, a fabrication, used taxpayer funds to hire the attorney who investigated the complaint and was the SOLE witness interviewed.

La Margo did not file a complaint. An employee reported a problem to him, and La Margo hired an outside firm to investigate. The investigation, the incidents within it, and the people involved all are real. No one has disputed that the incidents have occurred. Evidence can be seen in the 1,047 pages of supporting documentation, which the village has made available for public review. Jones Day interviewed seven village employees and stated that in its report. Attorney's fees were paid by village funds, which are taxpayer funds, in the same way all village bills are paid.

Claim: Village code states that the village manager is only authorized to spend $20,000 without board approval.

This is true, according to Orland's general purchasing policies. Orland also regularly permits its managers to hire attorneys as needed, including when it hired counsel to help with bringing gaming to Orland and in some arbitration cases. Those contracts exceeded the threshold. Village managers also are permitted to authorize spending that exceeds the threshold in emergency cases. In this case, at least one trustee, including Jim Dodge, told La Margo "do what you need to do" to complete the investigation. The board did not vote to approve each individual Jones Day invoice, in line with its practice for all attorney invoices.

Claim: We are also aware that the investigation was done in secret.

The investigation was not done in secret. According to the reports, email records and interviews, the people who were told about the investigation include: La Margo; attorneys James Roche, Dennis Walsh and Kenneth Friker; trustees Carole Ruzich, Patricia Gira, Michael Carroll, Jim Dodge, Kathleen Fenton and Daniel Calandriello; former Assistant Village Manager John Keating; and the seven employees interviewed as part of the investigation.

As part of this, Pekau indicates that he should have been told because he was the mayor. However, ICMA, the leading association of professional city and county managers and other employees who serve local governments, disagrees.

"If the party of the investigation happens to be an elected official, you would not inform him until it was complete," said Martha Perego, director of member services and ethics. "You don't talk to him until you get to the point in time when you need to talk to the individual. You wouldn't give that person a heads up."

"I think it's pretty straightforward," she added. "What complicates it is the village manager is investigating his boss, but if you remove the fact that an elected official is involved, you would proceed with the investigation as with any other case."

Claim: Clearly, interviewing me would have stopped the clandestine nature of the investigation.

ICMA states that contacting a mayor who is under investigation may be an ethics violation. See above.

Claim: I don’t believe the law gives the Village Manager the authority to access the emails of Elected Officials without FOIA.

According to a spokeswoman from the attorney general's office, a village manager as part of internal investigations can access the emails of elected officials without using a formal records request. However, she said, a municipality can limit that and require a village manager to use FOIA to access email records.

At the June 3 board meeting, Pekau asked village attorney Friker: "Under a secret investigation of a sitting elected official, does the Village manager have the authority to access Elected Officials communications without a FOIA?" Friker answered: no. When Patch asked Friker to clarify, he wrote: "No clarification necessary. The Village Code is silent about 'secret investigations' so the FOIA would apply." When Patch asked about investigations that were not secret, he did not answer.

Semantics games aside, Orland's village code does not require a village manger to use FOIA to access email or other records when conducting investigations. As Friker said, it doesn't mention FOIA's application to a village manager at all.

Claim: This investigation was unethical, potentially illegal and according to the Trustees, solely approved by Joe LaMargo, an Unelected Village Employee who does not have such authority.

According to a spokeswoman from the Illinois attorney general's office, a village manager typically has the authority to conduct investigations.

Perego, of ICMA, said village managers are ethically bound to look into allegations of wrongdoing. "When a manager gets a valid complaint by a whistleblower or staff or member of the public, and there is enough information or data to document or support the claim," she said, "then the ethical obligation is to consider the allegation valid and open whatever is an appropriate course of review."

In addition, Trustees Dodge, Fenton and Ruzich told La Margo to proceed, and all three village attorneys who were notified about the investigation indicated it should continue.

Claim: Unfortunately, our statutory Village Manager form of government gives unchecked power to an UNELECTED EMPLOYEE when the Trustees lack the willingness to oversee the person they appointed.

Voters approved a managerial form of government in 1983. Orland's website clearly outlines its expectations for the role. Under this structure, "the governing body in turn hires a nonpartisan manager who has very broad authority to run the organization ... the village manager system was designed to combat corruption and unethical activity in local government by promoting effective management within a transparent, responsive, and accountable structure."

The village manager, according to Orland, prepares "a budget for the board's consideration; recruits, hires, terminates, and supervises government staff; serves as the board's chief adviser; and carries out the board's policies." In addition, "board members and residents count on the village manager to provide complete and objective information about local operations, discuss the pros and cons of alternatives, and offer an assessment of the long-term consequences of their decisions."

Although village mangers serve at the pleasure of the governing body and can be fired by a majority of the board, they are nonetheless expected to make policy recommendations that are brought to elected officials for approval.

Claim: I also think it is clearly established that the Trustees and Village Manager did not have the legal right to conduct this investigation in secret, out of public view. Also, it has been established that an Open Meetings Act violation may have occurred.

The trustees, both the Jones Day and Mitchell report show, played no part in the investigation. Email and calendar records establish that La Margo, in his role as manager, opened the review. Each of the six trustees have said they were contacted individually. No evidence exists to show that any gathered in a group to discuss the issues. According to the attorney general's office, if trustees did not gather with La Margo, and if no quorum was formed, then no meeting occurred. If no meeting occurred, then the Open Meetings Act was not violated. A manager who speaks individually to trustees does not violate the open meetings act, she said.