Game over? Think again.

Note: This analysis of the three reports which Mayor Weisner and Corporation Counsel Weingartz say compelled them to issue an occupancy permit to Planned Parenthood may be expanded when the author finds time to do so.

BullLast monday, October 1, Aurora Mayor Thomas Weisner and Corporation Counsel Alayne Weingartz declared in a closed-door press conference that, based on the results of three independent reports into allegations of fraud by Planned Parenthood, they had no choice but to issue an occupancy permit. So they did. The whole country knows by now that in taking this action Mayor Weisner violated his promise to us, delivered at the August 28 City Council meeting and repeated at the September 11 City Council meeting that the investigation would be transparent and that results would be released to the City Council and the people. We were led to believe that the City Council would have the opportunity to deliberate any findings (see Weisner’s August 31 memo [PDF]). In fact, it appears that not the people, not the aldermen, not even the press, but rather Planned Parenthod were informed of the Mayor’s unilateral decision first. Our observers on site October 1 reported increased activity at the Planned Parenthood site—deliveries, more personnel, more cars in the lot. Ileave it to others—the mayor’s growing list of political opponents, for example, or perhaps an ambitious local reporter—to dig deeper into the precise nature of Planned Parenthood’s relationship with Weisner and Weingartz. And little more need be said about the mayor’s betrayal of our trust. What I want to focus on here is the serious flaws those three so-called reports. I’ll take each in turn.

The Barsanti Report

The report by Kane County State’s Attorney John Barsanti is, in a word, irrelevant. Barsanti was asked to determine whether Planned Parenthood was guilty of any criminal violations during the approvals process. Problem is, no one ever alleged that Planned Parenthood was guilty of criminal violations, but rather of civil fraud and plain old deception. In fact, the Barsanti press release stated explicitly that these questions were not considered:

The state’s attorney has no authority or jurisdiction in matters involving city or village ordinances, land use or zoning. “I offer no opinion on matters of which I have no authority or jurisdiction,” said Kane County States Attorney John Barsanti . . .

The Barsanti Report is nothing more than a red herring calculated to pad the mayor’s weak defense of granting an occupancy permit to Planned Parenthood.

The Martens Report

The first question to be asked about the report by attorney Richard Martens is, “Why are we even looking at this report?” Weisner’s appointment of Martens as investigator was objected to by three aldermen, who were concerned about his objectivity because of his ties to the city’s outside law firm. Martens was replaced—or so we thought—by attorney Philip Luetkehans. We shouldn’t even be considering his report, which we later learned the mayor instructed him to complete despite the aldermen’s conflict of interest concerns. But what about the Martens Report? What does it actually tell us? Nothing. Martens does little more—arguably nothing more—than describe the documents already known to us that evidenced deception and suggested legal fraud by Planned Parenthood. He tells us little or nothing we didn’t already know. The bulk of his report is nothing more than a narration, citing various documents, of the application process. In reading the Martens Report, it becomes clear that—for whatever reason—he did not conduct an adequate investigation. I find it hard to call it an “investigation” at all—it reads more like a book report about the various documents placed in his hands. Let me be clear here that I’m not finding fault with Mr. Martens himself. I don’t know what he was asked to do. But it sounds like he wasn’t asked to do much:

Interviewing Mr. Lehman [of Gemini Office Development] was beyond my assignment and authority. Further investigation is required to test the credibility of his responses to Alderman Elmore’s questions posed last November. [Emphasis added.]

Note not only that Martens considers it “beyond his assignment” to interview Gemini’s Tom Lehman, but that he explicitly states that “further investigation is required” into Lehman’s statements. This isn’t the only place where Martens admits the how limited his review really was:

I was unable to determine if Planned Parenthood, which is a not-for-profit entity, has a lease, license, operating agreement, or other written agreement with Gemini Office Development, LLC . . . . I was unable to determine, what, if any, information was known to those persons who signed the various permit applications as the owner’s agent . . . . I note that late this afternoon I received this afternoon [September 13] I received a fax from Bill Wiet, the Mayor’s Chief of Staff, regarding his recollection of all contacts he has had with Planned Parenthood. I have not interviewed Mr. Wiet or analyzed these documents . . . .

Martens does not explain why he was “unable to determine” all these things. Did he not ask? Why did he not interview Bill Wiet? Was Martens instructed not to interview the permit signatories or the city officials who received them? We don’t know. We don’t even know for certain whether these lacunae validate the conflict or interest concerns expressed by the aldermen. But it’s clear the the Martens Report—which, again, should never have been presented in support of anything—reveals only the need for further investigation, including interviews with Gemini officials and city staff and other officers. The use of the Martens report by Weisner and Weingartz to support their decision to issue and occupancy permit to Planned Parenthood is further evidence, in my view, of how weak their argument really is.

The Luetkehans Report

The Barsanti Report is irrelevant. The Martens report is inadequate. That Weisner and Weingartz felt the need to pad their case with them suggests that we can expect the Luetkehans report to fall short too. And so it does. The The first thing to note about the Luetkehans Report as distributed to reporters is that it is a draft. It’s riddled throughout with redline text! Weisner and Weingartz were apparently in such a hurry to get Planned Parenthood’s doors open that they didn’t even have time to run the simple Word macro that would have removed the deletions from the text and incorporated the revisions. To his credit, Luetkehans investigated somewhat more thoroughly than Martens. He references e-mails received from Planned Parenthood which indicate that as early as February 2007 they intended to use the facility to perform abortions under their own name. However, it is evident that his report, too, is based on incomplete information, as indicated in the following footnote on page 1:

We have nowt yet received almost all the information requested from City Staff . . .

He also addresses the question of whether Planned Parenthood requires a special use permit to operate at the location in question. However, the focus of this discussion is whether Planned Parenthood would be considered a hospital or not—a question which hinges on the types of abortions Planned Parenthood will be performing. Luetkehans offers only a cursory consideration—apparently offered in great haste—of the special use question as it pertains to a “not for profit health service”—the issue raised by citizens during the September 11 City Council meeting. Here is the entirety of Luetkehans analysis of this issue—all of it underscored, indicating that it is new material. For all we know, this paragraph was added on October 1, when the report is dated.

It has recently come to my attention that some property owners believe that the Special Use requirement for “Social service agencies, charitable organizations, health-related facilities, meeting halls and similar uses when not operated for profit in and [sic] use district” (herinafter “Social Service Agency”) should require a Special Use hearing. This Special Use is not defined anywhere in the Zoning Ordinance and, hence, is not as specific as the Medical Clinic and Medical Center definitions. Any ambiguity in zoning ordinances must be found in favor of the applicant. Given the lack of definition for Social Service Agency and the definitions for Medical Clinic, Medical Center and Hospital, the ambiguity would have to be looked at as stating that the planned use is akin to either a Hospital or Medical Clinic.

Before addressing Luetkehans’ argument here, let me reiterate that the reason this paragraph is underlined is not for emphasis, but because this was material recently added to the report (new text is indicated with underscoring in such drafts). Note the typo of “and” for “an” in the first sentence. This paragraph wasn’t even proofread before disclosure to the press. Now, I’m not a lawyer, but it seems to me that Luetkehans’ assertion that the Special Use in question is not defined anywhere is debunked by the very passage of the Zoning Ordinance that he quotes. And what’s “ambiguous” about a “health related facility . . . not operated for profit”? That’s exactly what Planned Parenthood claims to be. Is a “meeting hall” also ambiguous? How about a “charitable organization”? Luetkehans says that the Medical Clinic and Medical Center definitions are more specific. True, the zoning ordinance expends more verbiage defining those terms, but it does not follow that those definitions are “more specific.” More words are used in those definitions precisely because there is greater room for ambiguity in the distinctions between various types of medical facilities. But the Special Use language quoted above cuts through those distinctions with a more specific use—namely a not for profit use. A “health related facility . . . not operated for profit” is a more specific subset of a health facility, whatever sort of health facility it might be. Presumably the drafters of the Zoning Ordinance meant to exclude something from regular uses of a “B-2” zone such as that were Planned Parenthood is situated. It’s troubling that Weisner and Weingartz would be so eager to agree that language applying to numerous zoning categories in the ordinance is “ambiguous”—these are the very laws they are sworn to uphold! Moreover, Luetkehans nowhere addresses the careful argument set forth by attorney Vince Tessitori in his September 28 memo [PDF] to the City Council on the Special Use question. Perhaps Tessitori’s memo is among those documents Luetkehans had not yet been provided by staff before issuance of his report. In fact, no city official—not Zoning Administrator Ed Sieben, Corporate Counsel Alayne Weingartz, outside counsel or anyone else—has ever responded to Tessitori’s argument that as a not-for-profit health service, Planned Parenthood is required under Aurora law to obtain a special use permit, by way of public hearings. Nor has there been any response to the appeal filed by attorney Peter Breen on behalf of local property owners on this issue. The appeal was filed Tuesday morning before Planned Parenthood opened at 10:00 a.m. and, according to our reading of Illinois law, should have initiated an immediate stay on Planned Parenthood’s occupancy permit. In light of this analysis, it becomes easier to understand the hurried, clandestine, undemocratic manner in which Weisner and Weingartz announced their intention to issue an occupancy permit to Planned Parenthood. They well knew that their decision would not hold up under close scrutiny. No wonder they wished to confuse the question by a multiplicity of reports and claims that they had no choice. They had a choice. They chose to back Planned Parenthood without reference to the alderman and against the clear will of a majority of the people. They chose to silence any public discussion of this critical matter. They will now have to bear the consequences of that choice, both in the courts and on election day 2009.

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