McHenry Co. (ECWd) -
We have been informed that the Township Clerk, Karen Lukasik, is claiming the Township Board can't hold a meeting unless she is present.
She could not be further from the law if she tried, however, it would not surprise us to find out the Township attorney supports her position, which is commonly backed without statutory language on the actual obligations found in the law. Commonly referred to as "we have always done it that way".
What does the law say?
Conduct of Township Meetings (60 ILCS 1/40-10) Sec. 40-10. Clerk of the meeting.
(a) The township clerk, if there is one and he or she is present, shall act as clerk of the meeting and shall keep faithful minutes of the proceedings in a book to be known as the township record. The clerk shall enter at length in the township record every order or direction and all rules and regulations made by the meeting. The entry shall be signed by the clerk and the moderator of the meeting.
(b) This Section is subject to the Local Records Act.
(Source: P.A. 82-783; 88-62.)
The first section makes it clear. If there is a clerk "and" he or she is present, she acts as Clerk of the meeting and shall keep faithful minutes.
What does it mean when they say if he or she is present?
It points to the fact the Clerk is not required to be at the meeting, otherwise, the legislature would have made it a duty to attend the meetings, as they did for an appointed Deputy Clerk. Noting the above conduct of meetings statute applies to the Annual Meeting, we must look further and it appears to be clear, had the legislature wanted the Clerk to be the one required to attend both Township Meetings and Township Board meetings, they would have said so, just as they did for the Deputy Clerk. The fact the law is silent on mandatory duty to attend for the Clerk, we find it unfathomable that the Board can't hold a meeting without her.
(60 ILCS 1/75-45)
Sec. 75-45. Deputy clerk.
(a) The township clerk, when authorized by the township board, may appoint one deputy clerk.
(b) The deputy clerk has the power and duty to do the following:
(3) Attend township meetings and township board meetings and take minutes of those meetings.
So what does a Township Board do when the Clerk goes on vacation and there is no appointed Deputy Clerk yet a meeting has been called? In the case of Algonquin Township, they are being told they can't hold a meeting.
They are bound by the Open Meetings Act!
(5 ILCS 120/2.06) (from Ch. 102, par. 42.06)
Sec. 2.06. Minutes; right to speak.
(a) All public bodies shall keep written minutes of all their meetings, whether open or closed and a verbatim record of all their closed meetings in the form of an audio or video recording.
The responsibility to keep minutes when the Clerk is NOT present and there is no appointed Deputy Clerk falls on the Public Body, which is the Township Board. The Clerk is NOT part of the Public Body as it applies to the Open Meetings Act. That is based on the fact a public meeting is based on a majority of a quorum of the Public Body when public business is discussed. In the case of Township Government, the Township Board is made up of 5 voting members; four trustees and the Supervisor. The Clerk has no vote, therefore is not considered towards the members present.
It is the duty of the Public Body to keep written minutes, which is the Township Board, unless the Clerk is present or they have an appointed Deputy Clerk.
To drive this point home, once the Township Board records the minutes, then the Clerk has an obligation under the law.
(60 ILCS 1/75-10)
Sec. 75-10. Township meeting records. The township clerk shall record in the book of records of the township the minutes of the proceedings of every township meeting held in the township and shall enter in the book every order or direction and all by-laws, rules, and regulations made by the electors at any township meeting.
The confusion for many comes from two elements. Record in the books is not the same as taking the minutes.
Note that it does not say she is to take the minutes. Rather it states she is to record in the book of records of the township the minutes of the proceedings. Who actually takes those minutes is dependent on who is present and if a Deputy Clerk has been appointed. For example, if the Deputy Clerk took the minutes, the Clerk has a duty to record in the book of records of the Township the minutes taken by the Deputy Clerk. When the Clerk is not present, the Deputy Clerk has the power to record the minutes into the book of records of the Township.
There is no statutory language that requires the Clerk to be present and in fact, Township code points out that she may not be present when they instruct it is her duty to record minutes "if" she is present. Clearly, that is not a mandate to be present as found with the Deputy Clerk duties.
Taking the position the Township Board can't meet without the clerk being present is nothing less than giving the Clerk total power to control when a meeting is going to be held. That was never the legislative intent!
We challenge the Clerk, TOI, or any attorney to disprove the above opinion on this statutory construction.
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