June 22, 2014 · 2 Comments
IROQUOIS CO. (ECWd)
In yet another interesting twist of facts, we must expose more serious problems made by the ICOM/ETSB attorney during his recent rant to justify his existence as the ETSB attorney.
I revived back the response from Kane County, and let’s just say we are going to have some fun with this one! Kane County provided records that included John Kelly as a Special Assistant State’s Attorney for representation on matters for ETSB.
Where do we start?
Let’s start with what the Illinois Supreme Court said as it relates to any contract with a private attorney to represent the county.
“Any contract with a private attorney that was not supported by specific enabling legislation would be ultra vires. (Abbot V. County of Adams, 214 Ill. App. 201.) (Click here for AG Opinion with the information)
Now, before this “expert” attorney starts crying about that case and claiming it doesn’t apply since ICOM is the one that hired him, not the county of Iroquois, I reference it because it directly applies to the actions of Kane County and when we are done you will see why that agreement is just as the Supreme Court stated, Ultra Vires 0r VOID!
If ICOM is the agency that hired this “expert”, then can anyone show us ANY statutory language that permits ETSB money to be transferred to ICOM in order to pay legal fees for ICOM? Don’t waste your time as we have been down this road before, and there is no statutory language that permits the use of ETSB money for private counsel and all funds used for such purpose are recoverable.
Problems with Mr. Kelley’s claim of being a Special Appointed State’s Attorney to Kane County:
The professional Service Agreement with Kane County violates the payment process outlined by Statute for an Assistant State’s Attorney. Specifically, that agreement outlines that it is the ETSB board that is required to pay the lawyer. Even the County Ordinance outlines that the payment for an Assistant State’s Attorney is determined by the State’s Attorney’s office within the budgetary limitations set by the County Board. The County Board does not set limitations on the ETSB Budget. So again, the funding mechanism for this attorney is contrary to law and established ordinance.
AG Opinion S-567 references Assistant State’s Attorney’s as “employees of the county”. That being the case, he cannot be a Special Assistant State’s Attorney if he is a private contractor as outlined in the agreement.
Article VII section 9 outlines that Compensation of officers and employees and the office expense of units of local government shall not be paid from fees collected. The 911 fee placed on phone lines at a rate established by the county can only be used as outlined by Constitutional limitations and State Statute, of which neither allow those funds to be used to pay for legal representation. That representation is to be provided by the State’s Attorney. I do believe a State’s Attorney could appoint an assistant to handle matters for ETSB, however, they would be employees of the county, duly sworn in as such and the funding for them must follow statutory guidelines, which means they may not be paid from funds collected through the ETSB fee placed on the public.
The Kane County agreement outlines under paragraph #4 that this attorney is an Independent Contractor. Such language is not found in the statute for Assistant State’s Attorney’s. An appointed Assistant State’s Attorney is an employee of the county. The use of the ETSB fee to pay an attorney is inconsistent with the Illinois Constitution as well as the ETS Statute. We challenge this attorney to provide any statutory language that would support using ETS money for private counsel. Even the ICC, the state regulatory agency has confirmed no such language exists, yet we have lawyers doing as they please, the law be damned.
Sec. 15.4 of the ETS statute outlines 10 things that funds may be used for. In fact, it states, “Expenditures may be made only to pay for the costs associated with the following”, then it lists very specific items those funds may be used for. You will not find any language that permits those funds to be used to hire private counsel or pay an attorney appointed by the State’s Attorney. Doing so fly in the face of Illinois Supreme Court case law, AG Opinions, and state statutes! The reason being is that it is the elected State’s Attorney that has the statutory duty to represent the county, with ETSB is a body of the county.
We the People are the ones paying for these people to NOT read the law, and they are lawyers?
By Kirk Allen