KANKAKEE, IL. (ECWd) -
Continuing with our response to Kankakee's incorrect interpretation of who may or may not serve as a Director of the KMRA:
UPDATE: You can download and read these three articles in one document (here).
Starting at the bottom of page 4 of the memo:
"II. The Illinois Municipal Code and the Public Officer Prohibited Activities Act do not Disqualify Any Member of the Current KRMA Board of Directors
While there is ample, clear, affirmative authority for elected officers of the member municipalities to serve on the KRMA Board of Directors, neither the Illinois Municipal Code, 65 ILCS 5/1-1, et seq., the Public Officer Prohibited Activities Act, 50 ILCS 105/0.01, et seq., nor common law doctrine of incompatibility of office apply to prohibit any of the current KRMA Board of Directors members from serving. The allegations made to the contrary are, simply, wrong."
Actually, as the Board's By-laws, and Intergovernmental Agreements stand today, both the Illinois Municipal Code [65 ILCS 5/3.1-15-15] and Public Officer Prohibited Activities Act [50 ILCS 105/2] prohibit elected mayors and aldermen of the member municipalities from serving as a Director of the KMRA. With a "slight change" to the IGA (making the KRMA an actual stand-alone agency), by granting it the power to sue and be sued, and the KRMA filing its own Annual Financial Reports, the Mayors could serve as Directors. Aldermen can never serve on this Board unless the Legislature changes the statute(s).
"Section 3.1.-15-15 of the Illinois Municipal Code provides:
Holding other offices. A mayor, president, alderman, trustee, clerk, or treasurer shall not hold any other office under the municipal government during the term of that office, except when the officer is granted a leave of absence from that office or except as otherwise provided in Sections 3.1-10-50, 3.1-35-135, and 8-2-9.1. Moreover, an officer may serve as a volunteer fireman and receive compensation for that service. 65 ILCS 5/3.1-15-15 (emphasis added).
This section of the Illinois Municipal Code does not apply to affect the eligibility of any current the KRMA Directors. Section 3.4 of the Illinois Intergovernmental Cooperation Act and the KRMA IGA and By-Laws establish KRMA as a “municipal corporation and a public body politic and corporate,” 5 ILCS 220/3.4. KRMA is itself a separate entity from the its member municipalities. By its nature, the area KRMA serves extends well beyond the boundaries of one municipality and KRMA is not governed as a type of department or sub-agency “under” one municipality or its government. The governing authority of one member municipality cannot itself establish, direct, and oversee KRMA’s policies and procedures. Consequently, the KRMA Board of Directors is not “under the municipal government” of any municipality and, therefore, the allegations that any KRMA Director is disqualified pursuant to Section 3.1-15-15 of the Illinois Municipal Code is erroneous and ignorant of the law and facts herein."
YES, this Section does apply to the to the current KMRA Directors. Being a public body politic and corporate only means they are their own public body. The Intergovernmental Cooperation Act gave the member municipalities the power to grant the KRMA the powers to sue and be sued. For some unknown reason, they all chose to withhold that power from the KRMA. Since they do not have the power to sue and be sued, they must rely on their member municipalities, and are "under" those municipalities. If the KRMA does something to where they would get sued, the suit would name the municipalities making up the KRMA. If they were truly a "Special District" as we understand they want and intend to be, their IGA must be changed.
According to their By-laws, one member municipality, Kankakee, has the absolute power to establish, direct, and oversee KRMA's policies and procedures. Kankakee forever makes up the majority of the KRMA Board of Directors with appointment authority for 4 of the 7 seats. Majority of a quorum rules for nearly every situation in the KRMA and Kankakee can pretty much do whatever, whenever they damn well please with the KRMA and the other member municipalities cannot stop it.
"Section 2 of the Public Officer Prohibited Activities Act (the “POPAA”) states:
No alderman of any city, or member of the board of trustees of any village, during the term of office for which he or she is elected, may accept, be appointed to, or hold any office by the appointment of the mayor or president of the board of trustees, unless the alderman or board member is granted a leave of absence from such office, or unless he or she first resigns from the office of alderman or member of the board of trustees, or unless the holding of another office is authorized by law. The alderman or board member may, however, serve as a volunteer fireman and receive compensation for that service. The alderman may also serve as a commissioner of the Beardstown Regional Flood Prevention District board. Any appointment in violation of this Section is void. Nothing in this Act shall be construed to prohibit an elected municipal official from holding elected office in another unit of local government as long as there is no contractual relationship between the municipality and the other unit of local government. This amendatory Act of 1995 is declarative of existing law and is not a new enactment. 50 ILCS 105/2 (emphasis added).
Assuming, arguendo, that every Director is an “officer,” as discussed in detail above, elected officers (whether aldermen, trustees, or mayors) of the member municipalities are specifically authorized by the Illinois Constitution, the Illinois Intergovernmental Cooperation Act, and the KRMA IGA to simultaneously serve as KRMA Directors. Accordingly, the POPPA does not disqualify any current KRMA Directors and the borderline libelous accusation that POPPA has, somehow, been violated and that certain Directors may have committed felonies is baseless and frivolous. This rhetoric is dangerous fodder for political partisans to attempt to litigate their grievances and, hopefully, the unsupported, albeit published, allegations stay where they belong – in the trash."
This part of their memo should be used for toilet paper. Their was nothing political or partisan about these allegations as this attorney would have you believe. Truth cannot be a "borderline libelous accusation" - when the attorneys have nothing to stand on, their personal attacks begin again.
We stated previously, the Public Officer Prohibited Activities Act expressly prohibits an Alderman from accepting this appointment as a Director of the KRMA. There is no other authorization in any law for an alderman to hold this office. We fail to understand how this can be so badly misinterpreted. The Illinois Constitution, Article VII, Section 8 does not authorize an Alderman to hold this office, the Intergovernmental Cooperation Act does not authorize an Alderman to hold this office, and the KRMA Intergovernmental Agreement does not authorize and Alderman to hold this office.
This is not a borderline libelous accusation: We believe the Aldermen appointed by the Mayor of the City of Kankakee are in violation of the Public Officer Prohibited Activities Act and the penalties for violations are spelled out in Section 4:
Any alderman, member of a board of trustees, supervisor or county commissioner, or other person holding any office, either by election or appointment under the laws or constitution of this state, who violates any provision of the preceding sections, is guilty of a Class 4 felony and in addition thereto, any office or official position held by any person so convicted shall become vacant, and shall be so declared as part of the judgment of court.
"Neither statutory officeholder prohibitions nor any “common law” principles concerning incompatible offices prohibit the KRMA Board of Directors from being composed of member municipality elected officers. The common law doctrine of incompatibility of office can apply even if there is no statutory prohibition, but the doctrine does not affect any current KRMA Director in any event.
As stated in the often-quoted case, People ex rel. Myers v. Haas:
Incompatibility . . . is present when the written law of a state specifically prohibits the occupant of either one of the offices in question from holding the other and, also, where the duties of either office are such that the holder of the office cannot in every instance, properly and fully, faithfully perform all the duties of the other office. This incompatibility may arise from multiplicity of business in the one office or the other, considerations of public policy or otherwise.."
Wrong. Try reading the Public Officer Prohibited Activities Act, Section 2 again. Their own words prove our point:
"Incompatibility . . . is present when the written law of a state specifically prohibits the occupant of either one of the offices in question from holding the other . . ."
The "written law of the state" - the Public Officer Prohibited Activities Act - specifically prohibits the occupant of the office of Alderman (Kankakee) from holding the office of Director (KRMA) by appointment of the Mayor unless he first takes a leave of absence or resigns from the office of Alderman.
"A potential conflict of interest is not necessarily sufficient to give rise to a “conflict of duties” and establish incompatibility of offices. People v. Claar, 293 Ill. App. 3d 211, 217 (3d Dist. 1997). “Conflict of duties” requires a showing that the “duties of either office are such that the holder of the office cannot in every instance, properly and fully, faithfully perform all the duties of the other office” whereas certain conflicts of interest “are routinely cured through abstention or recusal on a specific matter”. Id.
No allegation has (or could) be made that serving as a KRMA Director represents a sufficient, likely “conflict of duties” that would prohibit a Director from simultaneously holding elected office in a member municipality. KRMA exists as a result of the IGA entered into by each member municipality. KRMA exists due to the fiduciary duties owed to the individual, member municipalities not any independent fiduciary duty owed to KRMA itself. The composition of the KRMA Board of Directors is such that each director’s duty is to represent the appointing member municipality. Therefore, there is no “conflict of duties” here and, instead, serving as a KRMA Director is in furtherance of the fiduciary duties owed by the elected and appointed member municipality officers."
The Legislature saw the "conflict of interest" by the way they wrote the Intergovernmental Cooperation Act. As you can see in our memo on this point at this link. Additionally, the legislature clearly saw the potential conflict of interest when they wrote the Public Officer Prohibited Activities Act and established clear Prohibitions.
As far as conflicts of interests being "routinely cured through abstention or recusal on a specific matter”, such abstentions or recusals are only permitted as outlined in the applicable statute for the public body that includes numerous key factors that must be met for taking such action. The fact the attorney talks of ways to cure conflicts of interests is most telling as it would appear he is acknowledging that there actually could be a conflict, otherwise, why mention the cure?
Regardless of potential conflicts, our point was about prohibitions as outlined in the law.
"Based on the explicit grant authority by the Illinois Constitution, the Illinois Intergovernmental Agreement Act, and the KRMA IGA and By-Laws, elected officers of the KRMA member municipalities are qualified to be appointed to, and serve on, the KRMA Board of Directors. The various provisions of the Illinois Municipal Code and the Public Officer Prohibited Activities Act do not apply to disqualify any current KRMA Director. Nor do any common law principles of incompatibility of office affect a member municipality officer from serving as a KRMA Director. In fact, the common law, in conjunction with the Illinois Constitution and Illinois Intergovernmental Agreement Act, support the ability of current, elected member municipality officers to serve their respective municipalities and represent the municipal interests on the KRMA Board of Directors. The allegations to the contrary are mistaken in law and fact and should be wholly disregarded."
Wrong. All of it. As we have demonstrated in this and previous articles, there is absolutely no "explicit grant of authority" in the Illinois Constitution, the Intergovernmental Cooperation Act, or the Intergovernmental Agreements or By-laws of the KRMA for any elected officers of any municipality to be appointed to or serve on the LRMA Board of Directors. I suggest Kankakee obtain a written opinion from a non-interested attorney and ask the appropriate questions for such an opinion.