DuPage County Board members apparently will get the second opinion some had sought in the legal dispute over whether the county should pay for the defense of seven current and former law enforcement officials charged with criminal misconduct.
A judge has ruled that DuPage State’s Atty. Joseph Birkett cannot properly represent the County Board’s interests on the issue.
The two-page ruling by Judge Ronald Pirrello of Winnebago County Circuit Court is a victory for DuPage County Board Chairman Gayle Franzen, who had sought the appointment of an independent counsel for the board.
Franzen is expected to recommend to Pirrello that Glen Ellyn lawyer William E. Jegen be appointed to represent the board on legal matters relating to the payment of defense fees.
Franzen and Birkett had been skirmishing over the issue since the indictments in December of four sheriff’s deputies and three former prosecutors on charges they fabricated evidence against one of the men wrongfully convicted in the 1983 slaying of 10-year-old Jeanine Nicarico.
Defense lawyers for the seven officials have asked to be named special state’s attorneys, which would force the county–and in effect, DuPage taxpayers–to pay fees that could amount to millions of dollars.
Birkett had advised the County Board that he believes the county will be obligated to fund the defense costs. Birkett and his supporters also have argued that it is in the best interests of the county to pay legal fees for the seven because DuPage County, they say, faces a potentially huge liability in pending civil lawsuits if any of the officials are convicted on criminal charges.
Franzen and some board members wanted a second opinion. They distrusted Birkett’s advice on the matter because of what they saw as conflicts of interest, including his past relationships with some of the defendants and their lawyers. For example, Terry Ekl, one of the defense lawyers seeking fees from the county, was Birkett’s campaign manager last year.
Acting as a private citizen rather than board chairman, Franzen filed an unusual court petition in January requesting the appointment of an independent counsel.
Jegen had argued on Franzen’s behalf that the County Board had a legitimate interest in protecting taxpayers from an unnecessary spending of public funds.
Pirrello ruled that there was a narrow, almost generic, conflict of interest in Birkett’s office representing both the board and individual county employees on the issue of legal fees. Pirrello’s ruling was dated Friday and made public Monday.
His decision followed unsuccessful efforts last week by representatives of Birkett and Franzen to negotiate an out-of-court agreement on the matter.
No decision has been made on whether to appeal the ruling, said John Kinsella, Birkett’s top assistant.
If Pirrello agrees to appoint Jegen as independent counsel, there likely will be a special County Board meeting Thursday.
Jo Daviess County Judge William A. Kelly has scheduled a hearing April 9 on the request for legal fees and DuPage County Board members are likely to decide before then what position, if any, to present to the judge. Kelly was appointed by the Illinois Supreme Court to preside over the trial of the seven.
The appointment of an independent counsel does not necessarily mean that board members will oppose the payment of legal fees.
“I don’t think board members have made up their minds,” said board member Michael Formento (R-Glen Ellyn). What the board had sought all along, he said, was an explanation of the various options.
“We need to have an objective viewpoint so we can sort out what is best, not only for the county employees who are defendants, but also for the protection of taxpayers,” Formento said.
Defense attorney Brian Telander, a former DuPage County judge who is representing DuPage Sheriff’s Detective Thomas Vosburgh, said he believes Kelly will order the county to pay the defendants’ legal fees “for a variety of reasons,” despite Pirrello’s ruling.
He added he believes previous court decisions support the contention that the county should pay defendants’ legal fees. He also said Kelly’s job would be easier if he keeps experienced and knowledgeable attorneys on the case.
“My personal opinion is I don’t think it (Pirrello’s ruling) is going to change anything,” Telander said. “I think Judge Kelly recognizes that this case is so complex that there is no way these defendants are going to be able to afford quality defenses on their own.”
