More often than not we find attorneys who represent public bodies tend to advocate for the desires of the public body, sometimes ignoring lack of authority for those desires. One of the common ways they do this is to present opinions which may ignore the foundation of our laws in Illinois, as well as how they are to be interpreted.
Below are just a few examples of what we call red flags in legal opinions we have heard and read recently related to Shelby County and the lease of farm ground to a private farmer, but first, people need to understand what Dillon's Rule is.
The Dillon Rule is used in interpreting law when there is a question of whether or not a local government has a certain power. Lawyers call it therule of statutory construction.
Dillon's Rule construes grants of power to localities very narrowly. The bottom law is -- if there is a question about a local government's power or authority, then the local government does NOT receive the benefit of the doubt. Under Dillon's Rule, one must assume the local government does NOT have the power in question.
In legal language, the first part of Dillon's Rule reads like this: Local Governments have only three types of powers: 1.) Those granted in express words; 2.) Those necessarily or fairly implied in or incident to the powers expressly granted; and 3.) Those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable.
It is the second part of the Dillon Rule, however, that puts the vise on local government's powers. This part states that 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 therule of local government powers."
The Shelby County State's Attorney received a legal opinion from a law firm regarding the leasing of farm ground and real estate tax issues. In one of the paragraphs, the following was written.
"For the reasons hereinafter stated, it is our opinion that the Illinois Constitution does not prohibit a county from leasing county-owned farmland to a private tenant so long as there is some public purpose. Further, it is our opinion that Shelby County is responsible for payment of the 2019 real estate taxes, as explained below."
The statement has all the red flags of advocating for a particular position, in this case, leasing of farm ground. This typically takes place when there are no express powers granted for a particular action. In other words, since the Constitution does not give them the power to lease farm ground, they point to the fact there is no prohibition to that action, which completely ignores black letter law and the most basic application of statutory construction.
We believe an appropriate response related to what the constitution states regarding leasing farm ground would be this.
We find no power given in the Constitution authorizing a County to lease farm ground for a private purpose.
We are very confident the attorney providing legal input to the County knows that as well, because if there was such power, they would have hung their hat on it in preparing their opinion. We note that the legal opinion provided made no mention of the statute now being cited by the State's Attorney. We find that most interesting considering the law firm represents the United Counties Council of Illinois. You would think if the statute now being used by the State's Attorney actually applied to the situation they would have chimed in on that. Their silence is telling in our opinion.
Another red flag example:
"..Based on the foregoing, the county does have authority to lease real estate to a private party to be used by such individual for a private farming operation for an annual cash rental paid to the county, so long as there is some public purpose served by doing so. Otherwise, without any public purpose, the leasing of the real estate without any public purpose or benefit would violate article VIII, section l(a) of the Illinois Constitution."
Note the different qualifiers used. "so long as there is "some" public purpose served" then switched to "the leasing of the real estate without "any" public purpose or benefit would violate article VIII section 1(a).."
We agree that there must be some public purpose however such a statement is missing the foundational support; identifying what that public purpose is. In Shelby County, the only claimed public purpose echoed by the State's Attorney is that the county would make money. If making money constituted a public purpose, then every prior legal opinion on this matter would be wrong because they all generated revenue for the county but were deemed in violation of the Constitution because there was no public purpose. That indicates making money from the lease was not a qualified public purpose.
According to the Attorney General in opinion S-1288, the matter of public purpose is not about who receives public money or property but rather the purpose of the use of that money or property.
"It is not who receives the money or property, but rather the purpose of the use, which is dispositive of its constitutional validity."
There are numerous examples of county government legally leasing property to a private entity and every legal opinion we have seen on such leases from the Attorney General clearly spell out the public purpose. For example, the following county leases had a clearly identified public purpose:
County Hospital leasing ground for the construction of private offices for physicians.
County Nursing home leasing to a nonprofit for a child daycare center.
County leasing to non-profit for the sole purpose of providing dormitory space to students of a local community college.
The Attorney General's opinion on those three examples can be downloaded at this link.
If the purpose of the use of the public property is dispositive of its constitutional validity, according to the legal analysis outlined in Attorney General Scott's S-1288 opinion, we challenge the County Board of Shelby County to provide logical examples as to how letting a single private for-profit farmer using public ground constitutes a public purpose.
As we stated before, the statute now being cited by the State's Attorney, in our opinion, is not a power given to lease farm ground for the purpose of making money. The statute has all the indications of being a statute pertaining to surplus property. It is clear this property is not surplus as they want no part of selling it because they are so focused on making money from it.
During the recent special board meeting in Shelby County, the farmer who has been leasing the farm ground made a statement about him farming the ground for 33 years. How special is that?
Shelby County has never put this ground up for bid which is required. Why are the board members who ignored our laws given a pass? Most are familiar with the phrase "ignorance of the law is no excuse", however, it appears in Shelby County the laws mean next to nothing as we have yet to see a single public official or employee held accountable for clear violations of law with the exception of the Tower Hill official several years ago. We note that when officials violate or ignore the law, such an action is a violation of their oath of office.
It is our opinion any current board members who played a role in leasing the farm ground without putting it out for bid as clearly required should resign.
A copy of the discussion pertaining to the farm lease during the Special County Board meeting can be viewed below.
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