St. Clair County state’s attorney: Prosecuting coroner would have been unethical

St. Clair County State’s Attorney Brendan Kelly said his letter in 2012 to the Illinois Department of Financial and Professional Regulation made it “crystal clear” he was prepared to call for a special prosecutor to decide whether to pursue misdemeanor charges against Coroner Rick Stone, a friend and fellow Democrat, for serving civil subpoenas for money without a license.

Kelly said that because the coroner’s office and prosecutors have a close working relationship, he could not ethically be involved in any way with the matter because it would be a violation of the rules of professional conduct for a prosecutor. He said that in the letter, while he did not in so many words actually ask the state agency for its records concerning a civil fine against Stone, it should still have been obvious that his readiness to ask for a special prosecutor meant that he needed the records. Stone was fined $10,000 by the agency following a civil prosecution. He was not criminally charged.

“I never heard back from them,” Kelly said recently. “Why didn’t they send me the records?” He said that he did not try to again contact the department because of the press of other cases.

But Peter A. Joy, a professor of law at Washington University in St. Louis, who specializes in legal ethics, said the close working relationship between the two departments made it even more important that Kelly move to ask a judge to appoint a special prosecutor. While Joy said that Kelly was correct in not involving his office in any investigation of Stone, he should have obtained evidence of probable cause needed to appoint a special prosecutor by obtaining a certified copy of the $10,000 fine.

“That would be sufficient,” evidence to ask for a special prosecutor, Joy said.

Kelly said he interpreted the rules of ethical conduct as preventing any action by himself or any of his prosecutors, even to asking the Department of Financial and Professional Regulation for a copy of the civil fine against Stone.

“I thought about it a great deal, in part because it was a conflict,” Kelly said. “I thought it was the best way to handle it at that time ... The coroner’s office and this office interact all the time when there’s a murder or a case involving death which I felt made it improper for us to have anything to do with it at all. So, I took what I thought at the time were some appropriate steps to make sure at least some authority had looked at it and understood that this office wouldn’t get in the way ... If a conflict exists, you have to press the pause button and have nothing to do with it.”

The statute of limitations on a Class A misdemeanor in the case expired 19 months ago. Stone, who has paid $9,630 of the fine, declined to comment for this article but previously said he did deliver subpoenas for money not knowing he did not have the proper license, and stopped when informed that he needed a license.

Kelly’s office has successfully prosecuted 25 public officeholders for misconduct in less than three years.

But according to a copy of Kelly’s letter obtained by the Belleville News-Democrat, the Department of Financial and Professional Regulation was never asked to send records.

Had the agency been asked, it would have cooperated, said Terry Horstman, spokesman for the Department of Financial and Professional Regulation. The department has only civil jurisdiction and does not have authority to pursue criminal charges, according to Horstman.

Kelly’s one-page, Nov. 2, 2012 letter to Mary Cay Marubio, head of business prosecutions for the regulating agency, said that if any police agency requested charges, Kelly was ready to ask a judge to appoint a special prosecutor.

Kelly said he called the Illinois State Police in Collinsville and asked, “Are you doing anything with this?” and was told that no investigation was underway. He said he felt it was unethical for him to have asked State Police to investigate.

However, a Chicago attorney Edward W. Williams, who once headed the Department of Financial and Professional Regulation’s civil prosecution section, said requiring a police agency to investigate an alleged licensing crime by an official in a courthouse, especially when signed affidavits existed as evidence, was “nonsensical.”

Evidence that could be used to prosecute Stone exists in the Circuit Clerk’s office on the third floor of the county office building, one floor above prosecutors. This consists of notarized affidavits signed by Stone attesting that he served a civil subpoena and was entitled to a $50 fee.

“This happened under under conditions which could be construed as a violation of the law,” said Williams, referring to the existence of the notarized affidavits that Stone was required to sign attesting that he served the accompanying subpoena.

“These affidavits, they’re in the court files in the same building. That’s all he (Kelly) needs,” Williams said.

Asked why records in the Stone case weren’t sent to Kelly’s office, Horstman, the spokesman for the Department of Financial and Professional Regulation, replied, “The department has no criminal jurisdiction. Enforcement actions by the department are limited to the administrative/civil process. The department regularly cooperates and works with various State’s Attorney’s offices throughout the state and with the U.S. Attorney’s office in criminal matters involving persons licensed by the department. We would certainly cooperate with and assist State’s Attorney Kelly if he requests department records and assistance.”

Kelly said that official misconduct charges would not have applied in Stone’s case because serving subpoenas was outside the purview of his official duties as coroner.

In July 2012, Stone told the BND that he had served subpoenas for at least two years for a local hospital that was attempting to collect unpaid bills. He said he used a county car in which he paid for the gas but did not keep receipts of these payments. He has said he was entitled to use the publicly owned car because, as coroner, he is on call 24 hours a day.

Stone said at the time that, because of a physical impairment, he did not himself actually bring many of the subpoenas to the recipient’s door, and instead used an assistant for this purpose. Stone said he kept the assistant “in line of sight at all times.” Of 30 subpoenas signed by Stone that were reviewed by the BND, all were served after business hours or on weekends.

Stone has said that in response to an inquiry from Chief Judge John Baricevic, he promised not to serve any further subpoenas. Under state law, to serve a subpoena a coroner must have a private investigator’s license or a Permanent Employees Registration Card that would allow him to work under supervision of a licensed private investigator.

This story was originally published August 8, 2015 at 6:47 PM with the headline "St. Clair County state’s attorney: Prosecuting coroner would have been unethical."