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Geneva seeks to dismiss Simonian court filing on ethics complaint

Judge to hear arguments July 20

GENEVA – An ethics complaint filed against Mayor Kevin Burns during the recent election campaign has taken on new life in continued court filings, records show.

Former Fifth Ward Alderman Tom Simonian had alleged a city firefighter performed campaign work for Burns while in uniform and using a city vehicle. His complaint also alleged that the commissioners should have recused themselves because they had all been appointed by Burns.

The Geneva Ethics Commission dismissed Simonian's complaint. The commission found a lack of evidence that the firefighter intentionally distributed political campaign signs using the city’s resources or that he was intentionally campaigning for Burns.

Simonian filed court papers seeking administrative review to reverse the commission’s ruling. The city wants a judge to toss out Simonian's court filing, claiming the court lacks jurisdiction. Simonian’s response disputes that claim.

A hearing on the motion to dismiss is scheduled for July 20 before Kane County Circuit Judge David Akemann at the Kane County Courthouse, 100 S. Third St., Geneva.

In court papers, Simonian also challenged the standing of the Geneva ethics commissioners and asked for a new hearing. The legal back-and-forth stems from Simonian’s ethics complaint against Burns filed before the April 4 consolidated election, in which Simonian lost his bid for mayor to Burns.

Simonian’s ethics complaint – and now his request for administrative review – alleged that the appointment of Timothy Moran as commission chairman had expired; that all three ethics commissioners should have recused themselves or should have allowed an examination on the issue of recusal or change of venue; and that the commission was wrong to deny his request for a continuance.

In his court filing seeking dismissal, city attorney Timothy McLean argued that the city’s ordinance regulating political activities did not adopt the state Administrative Review Act.

“Nor did the General Assembly provide … that decisions of the [Ethics] Commission would be subject to administrative review,” the lawsuit stated. “In the absence of the express adoption of the Administrative Review Act, this court is without jurisdiction to review the city’s Ethics Commission.”

In response, Simonian’s attorney, Joshua Feagans, filed court papers disputing that argument, and asked the judge to deny the motion to dismiss.

According to Feagans’ filing, the city code states decisions regarding code violations are subject to review under the state’s administrative law – and including it in the ethics ordinance is unnecessary.

“Because the ethics ordinance is part of the city code, the overarching provision on judicial review encompasses all code violations and applies to the ethics-related decision at issue,” Feagans’ court filing stated. Feagans’ motion also states the city code includes a general provision addressing judicial review.

That section of the city code states that any “final decision by a hearing officer that a code violation does or does not exist shall constitute a final determination for the purposes of judicial review and shall be subject to review under the Illinois administrative law,” according to Feagans’ filing.

Feagans’ filing also states that the Illinois State Officials and Employees Ethics Act provides that a “decision of the executive ethics commission to impose a fine or injunctive relief is subject to judicial review under the Administrative Review Law.”

And because the Geneva Ethics Commission’s decisions are subject to judicial review, the court has jurisdiction, according to Feagans’ filing.

Simonian’s ethics complaint alleged misconduct by a city official, and “it would be against public policy to disallow judicial review of the decision,” the court filing stated.

Under the city’s ethics ordinance, the mayor appoints the three members of the Geneva Ethics Commission, the filing stated.

“If there were no recourse beyond the decision of the city’s ethics commission, any mayor of Geneva could ensure that the members of the Ethics Commission were loyal to him and completely avoid any consequences for violating the ethics ordinance,” the filing stated. “The commissioners were appointed by defendant Kevin Burns and were actively supporting him in the mayoral election that was held just three weeks after they issued their decision."

“One of the purposes of administrative review law is to act as a check on municipal determinations; thus, it would be contrary to public policy if this court lacked jurisdiction over this matter,” the filing stated.

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