Cook Co. (ECWd) -
Legal opinions are a joy to debate, especially when you're not an attorney. With that in mind, we encourage good attorneys to chime in on this multi-part analysis of Maine Township's Attorney Daniel Dowd and his opinion that a Food Pantry is General Assistance, the Township Supervisor can hire anyone she wants independent of the Board to work in the Food Pantry, and that she can also hire another attorney on her own if it deals with General Assistance.
According to the Township attorney:
"Construing these three statutory provisions together, it is clear to me that ( 1) the supervisor is the ex officio supervisor of general assistance charged with the administration of the program (§ 1/70-50); (2) with authority to appoint and set the compensation of employees deemed necessary to provide the public aid required by the Code(§ 12-21.2); and (3) the township board is expressly excluded in decisions regarding the employment and compensation of general assistance employees(§ 11100-5(a))."
We agree with (1), and (3). However, we take issue with his language in (2). To bring you up to speed, we encourage you to read the first article on this attorney's opinion found here.
We find it kind of interesting that instead of quoting that section language in his supporting argument, he added words that are NOT in the statute, which is very concerning. Why is it concerning?
"The best evidence of legislative intent is the language used in the statute itself, which must be given its plain and ordinary meaning. Kraft, Inc. v. Edgar, 138 Ill.2d 178, 189, 149 Ill.Dec. 286, 561 N.E.2d 656 (1990); People v. Tucker, 167 Ill.2d 431, 435, 212 Ill.Dec. 664, 657 N.E.2d 1009 (1995)."
What the statute actually says: "Sec. 12-21.2. ....... "The Supervisor of General Assistance shall appoint such other employees as may be necessary to provide public aid under Article VI and prescribe their compensation and duties. (Source: P.A. 81-1085.)"
Dowd appears to have selectively changed words in an attempt to bolster his weak legal position. What did Dowd put in his opinion as it relates to employees and their hiring?
"(2) with authority to appoint and set the compensation of employees deemed necessary to provide the public aid required by the Code"
"Deemed" does not appear in the plain language of the law, nor does the word "required." By emphasizing the Supervisor is, in fact, the ex oficio Supervisor of General Assistance, his added assertions lead the reader to believe something that is, in fact, not supported by law, nor case law. That should concern the taxpayers of Maine Township.
Yes, the Supervisor may hire staff that "may be necessary," which leads us to the subject completely avoided in this opinion. Who determines what may be necessary? As it relates to the operation of a Food Pantry, we contend the Board is vested with that authority and for reasons that will be explained in our multi-part series, Food Pantry is not General Assistance. Dowd violates Dillon's Rule in his analysis and that is critical to understand.
"It is my opinion that it certainly could include the food pantry, but does not exclude the food pantry from being administered under the auspice of general assistance."
Dillon's rule points to being given the power, which he confirms the Township has the power to operate a Food Pantry under the social services for the poor and aged section of the law, which we agree. However taking the position that such power was given for that purpose does not exclude the food pantry from being administered under the auspice of General Assistance is a clear misapplication of the law. He attempts to imply a power that is not expressed in any statute. To say it does not exclude must be supported by such language in the statute, which is not found. A typical example of such language is found in this form: "may include, but shall not be limited to". Note that language is not found.
Dowd places a claim of "does not exclude" in his opinion which is simply not supported by law.
Apply Dillon's rule: "if there is any reasonable doubt whether a power has been conferred on a local government, then the power has NOT been conferred." This is known as the rule of local government powers."
The fact the Supervisor has sought not one, but two legal opinions on this matter, point to reasonable doubt, as does Dowd's own opinion.
And to drive the message home as to why Dowd is simply wrong, apply the well-established case law on statutory construction. Had the legislature wanted food to be one of those basic maintenance needs that he is trying to hang his hat on under General Assistance, they would have included it, as they did in two particular circumstances under Article VI section 9, which is tied to a Federal Declaration of a disaster:
- (b)(1) -"A local governmental unit may provide assistance to households for food and temporary shelter."
And under Article XII section 4.5, which is tied to Federal assistance:
305 ILCS 5/12-4.5 - ..... "The Department of Human Services shall cooperate with units of local government and non-profit agencies in the development and implementation of plans to assure the availability of temporary shelter for persons without a home and/or food assistance."
Had the legislature intended for food to be provided for General Assistance under the Public Aid Act as a whole, it would have been included as such. With restrictions as to when food can be provided found in the statute, that plain language of the law is the restrictive language of the legislature. Only under those circumstances is supplying of food under General Assistance authorized by statute.
In closing, General Assistance is not an open door for Maine Township to spend General Assistance tax money to operate a Food Pantry by treating it as if they are a vendor providing aid. The law does not work that way. They can operate a Food Pantry, and we commend them for that program; however, the funding cannot be provided by General Assitance except within the confines of the two exemptions for food assistance found in the law.
Have we suggested Maine Township look for another attorney and Supervisor? Both should resign for their apparent manipulation of the law to support their desires instead of those of our Legislature.