IROQUOIS CO. (ECWd)-
What is it with some attorneys that think they are experts just because they have been working in a field for 35 years? Let’s take a hard look at yet more illegal actions in Iroquois County that are being justified by a hired gun “attorney”, that by all indications is a full bubble out of plumb! After dealing with so many of these public body lawyers one thing is showing itself as a common denominator. They are all full of opinions but rarely are they ever challenged to defend those opinions, thus they end up believing their own propaganda and its the local media who fails the public by printing the crap without any validation of claims made. (Failed reporting by Wendy Davis, Times Republic)
John Kelly of Ottosen, Britz, Kelly,Cooper, Gilbert & DiNolfo Ltd was the primary speaker of the recent Iroquois County ICOM/ETSB meeting, which contrary to his opinion, appears to have been an illegal meeting. His position is that since the meeting and agenda was posted on the door of the 911 center it complied with OMA.
There are requirements in the Open Meetings Act pertaining the posting and I believe the Attorney General will in fact find that this meeting failed to meet those requirements and we will explain why. When a meeting is held at a location other than the office of the public body, the posting must meet specific requirements. Specifically, the posting “shall” be at the location of the meeting.
Was this meeting held at the principal office of the public body? No, it was not, thus there must be a second posting at the location of the meeting, which was the county board room.
Can it be argued to claim the single posting was on the “Building” so posting was compliant, yes it can, however, when that posting is done on the opposite side of the public access point of the building at a location where the public is neither permitted to enter or would know to even look, that raises serious concerns. The law requires two postings when the meeting is not held at the principal office of the public body, which means they did not post the meeting in accordance with the Open Meetings Act because they failed to post it at the location of the meeting. (Click Here to See OMA Sec. 120/2.02)
His next assertion, according to Wendy Davis with the Times Republic, is that ICOM and ETSB can in fact hire an attorney and then spells out what I would call a very poor argument but good enough to convince those who don’t know the law.
He claims that the intergovernmental agreement (IGA) that the county, city and ETSB entered into gives them the power of “any” agency that makes it up so since the city can hire an attorney he believes that power is transferred to the intergovernmental agreement.
This is the perfect example of where lawyers believe their own propaganda and it’s exactly why this state is in the mess that it’s in. Couple that with reporters who refuse to validate claims made by people like this and we end up with a society that is spoon fed lies and deception all while thinking its truth.
I actually can’t believe we have to spell this out, but since so many people got hoodwinked by this “expert” we must take the time to explain, and I am confident when we are done, all will agree the Lawyer is dead wrong on his assertions!
As a clear example of how off the charts wrong this guy is, using his own logic, ICOM could establish an Airport, Police Department, Fire Department, etc all because the city has those powers to do those things and since they are part of the IGA then ICOM can do it.
WRONG Mr. $30,000.00 illegally hired attorney!
An IGA is very straight forward and a key word in it is “Agreement”. The IGA is in fact an “Agreement” between public agencies. That agreement spells out what they are agreeing to do. It is not in any fashion a transfer of power from one agency to another and any first semester law student could figure that out in about 20 minutes of searching case law and AG opinions on IGAs.
Characterizing an instrument as an “intergovernmental agreement” authorized by article VII, section 10 of the Illinois Constitution of 1970 (Ill. Const. 1970, art. VII S10) does not permit the parties to avoid the existing statutory limitations on the power of the public body that is a party to the intergovernmental agreement. See Attorney General Opinion 85-10 and Holladay V. Chicago Arc Light & Power Co. (1894), 55 Ill. App. 463, 466-67
The intergovernmental cooperation provisions of the constitution were not intended as a means whereby units of local government might acquire authority to engage in an activity in the first instance, when the authority is not specifically granted by the constitution or by statute. (Ill. Att’y Ge. OP. No NP637, issued October 17, 1973) Similarly, since it is not a grant of original power, article VII, Section 10 of the constitution cannot authorize agreements the effect of which would be to contravene and existing and explicit statutory prohibition.(See Attorney General Opinion 85-10)
One particular statutory prohibition would be the expenditure of ETSB money to hire an attorney. As this lawyer clearly pointed out in his self importance inflated presentation, the ETSB statute is very specific on what you can spend money on and there is no language at all that permits the hiring of an attorney. That being the case, ETSB cannot hire an attorney and we will expound on that even more further in this article.
With more “lawyer” talk, he misleads the public with his claim that the State’s Attorney can appoint an assistant state’s attorney when there might be a conflict with the county, then muddies the water by touting that he is an appointed state’s attorney in several counties.
Mr. Kelly, there is no conflict with the States Attorney and ETSB, you were not appointed as an Assistant State’s Attorney and we are confident that when this is all over, your firm will in fact be paying back to the county every penny that you billed them for your services, which by all indications lack a fair share of legal analysis but do contain that ever so popular lawyer fluff!
What did the Illinois Supreme Court say on this very topic?
“The Illinois Supreme Court has held that the State’s Attorney is the attorney and legal adviser for the county. Absent specific enabling legislation, a county cannot employ an attorney to render legal advice to the county board or to do legal work for the county. (Ashot V County of Cook. 384 Ill. 287 and Abbot V Conty of Adams, 214 Ill. App. 201). Any contract with a private attorney that was not supported by specific enabling legislation would be ultra vires.” (Latin term for Void)
To head off any more lies and attempted cover from being provided on this topic, let’s expose some more facts. A response from the 911 Director, Nita Dubble stated: “The Emergency Telephone System Act allows the ETSB to enter into contracts. This includes a contract to hire an attorney. The State’s Attorney’s Act allows the State’s Attorney to appoint special states attorneys if the state’s attorney is interested or unavailable. The ETSB does not keep copies of statutes as public records.”
I suspect her brilliant illegally hired attorney provided that response! My response: “If you’re claiming the State’s Attorney authorized this action then please consider this a FOIA request for a copy of that authorizations.”
Please note that the ETS Act does not include language that allows them to hire an attorney!
Her response: “No document exist.”
In the event the State’s Attorney takes a path of trying to cover and say that he gave permission for them to hire an attorney, let’s look at what the Supreme Court says about that type of action!
In Ashton V. County of Cook, Supra, a case involving a contract between Cook County and a private attorney employed to collect delinquent taxes, the court stated, pages 299, 300, “…No provision is made in the law which authorizes a board to employ private counsel in collection of delinquent taxes under the emergency pleaded, even though the State’s Attorney approves the contracts as to form and gives his silent acquiescence to the procedure adopted. His consent cannot operate to supply the board with a power which the legislature has seen fit to withhold.”
Not convinced yet that the hiring of private counsel was outside the authority of these people?
The Law is well settled that when the constitution or the laws of the state create an office (State’s Attorney), prescribe the duties of its incumbent and fix his compensation, no other person or board, except by action of the legislature, has the authority to contract with private individuals to expend public funds for the purpose of performing the duties which were imposed upon such officer. (Fergus V Russel, 270 Ill. 304; Stevens V Henry County, 218 Il. 468; Hope V. City of Alton, 214 Ill. 102.) The contracts of employment under which appellant’s claim were ultra vires and void.” (Click here for AG opinion that contained all this source information!)
And as one last nail in the coffin of this blabbering buffoon representing ICOM outside the scope of the law, the very IGA he speaks of, even if it was legal, which it is not, has no language that allows them to hire an attorney! The reason it is not a legal agreement is because it was never approved by the county board. All this talk of it being legal since they participated falls on the face of contract law, especially when the county board did not know about the new agreement they are operating under entered into in 2011.
As I laid out in the previous article, this law firm owes the good people of Iroquois County their money back! (Click here for previous article)
Leave it to an attorney to lay the foundation to justify why it’s OK for him to collect money from the taxpayer when the taxpayer is already paying for one!
You can’t make this stuff up!
The other amazing point with this clan of renegades is they are all upset with the County Chairman who is bending over backwards to try to save the taxpayers money at every turn. Only in Illinois would people attack a person trying to save them money! What money? The money being spent on an attorney for starters!
This attorney then elaborates about what the county can or cannot do and how it applies to spending money and even stated that ETSB is the only entity in county government that controls the spending of their money. Mr. Kelly, you are incorrect yet again! The County Health department Board controls their money and do not need the County Boards approval to spend it. The same goes for County Housing Authorities. That being the case you are in fact wrong when you claim that the ETSB is unique and the only entity in county government that controls the spending of their money.
John Kelly – “ETSB is not a dispatching agency”
What does the law say?
...once an emergency unit is dispatched in response to a request through the system, such unit shall render its services to the requesting party without regard to whether the unit is operating outside its normal jurisdictional boundaries.
The alerting device shall also provide for either 2-way communication or send a pre-recorded message to a 9-1-1 provider explaining the nature of the emergency so that the 9-1-1 provider will be able to dispatch the appropriate emergency responder.
...The implementation of a computer aided dispatch system or hosted supplement 911 cervices.
I could keep going but the point is, ETSB is in fact a Dispatch agency contrary to this attorney’s words. In fact, the legislation uses the term Dispatch throughout the statute, of which three of those examples are provided above.
ETSB is a Dispatch agency for emergency calls and the the lawyer is wrong to claim they are not!
According to the brilliant reporting of Wendy Davis, Mr. Kelly stated “everywhere there are agencies billing for dispatching and why should Iroquois County be any different?”
For starters, how is it that the same guy that says ETSB is not a dispatch agency now provides an argument why they can charge to dispatch? The answer is simple, he is a lawyer and they are trained to talk out of both ends of their bodies!
The reason Iroquois County should be different is because Mr. Kelly once again failed to present a few key legal facts. Like the fact that there is no language in the ETSB statute that authorizes for billing emergency dispatch. Without the statutory authority you can’t do it. Couple that with the fact those emergency responders have statutes that they follow as well, and you will not find any authority for them to spend their money on dispatching. That is the job of the County ETSB and the System for getting those agencies contacted is required to include each and every emergency agency in the county. The SOLE funding source by law is the surcharge collected though peoples’ phone bills.
I challenge this lawyer to provide the statutory language that allows the spending of tax dollars levied for providing emergency services on dispatching! The fact that other counties are breaking the law is not the justification for Iroquois County to do it as well. Is this guy really an attorney?
John Kelly: “Each emergency department must have some sort of dispatching”
Wrong again Mr. Kelly!
(50 ILCS 750/5) (from Ch. 134, par. 35)
Sec. 5. The digits “9-1-1” shall be the primary emergency telephone number within the system, but a public agency or public safety agency shall maintain a separate secondary seven digit emergency backup number for at least six months after the “9-1-1” system is established and in operation, and shall maintain a separate number for nonemergency telephone calls.
(Source: P.A. 85-978.)
The law is clear and there is no requirement by statute for each emergency department to have some sort of dispatching. The whole purpose of the 911 “system” was to centrally locate where calls went and they were to dispatch the appropriate agency. Don’t take my word for that fact. Read it yourself in Sec. 1 of the ETS Statute! (Click here for ETS Statute)
And if all the lawyer gobbly goop is not bad enough, the brilliant minded Sheriff Hagen claims that if his office takes on dispatch he too would have to bill the emergency departments for the services.
Hey Sheriff, under what statutory authority would your office be allowed to send out a bill for dispatching? Our County Sheriff provides Dispatch service to the County and the funding is subsidized with ETS money because they handle the 911 calls, thus funding can be provided to that office however there is no language in the County Code that allows the Sheriff to bill for dispatching calls.
And the best part of the entire reporting by Wendy Davis was this quote:
“County Board member and the ICOM’s representative Jed Whitlow said after Copas’ remarks about attending outside meetings and being educated on issues, “Did he come to find out what an expert has to say?”
I teach all over the country and one of the key things I always say to the class before beginning any instruction is this; Just because a person stands in front of you and runs his mouth off about stuff doesn’t make him right. All to often we allow ourselves to be lead down a path of deception all because the person talking is at the front of the room and we have given them a false title of expert. I urge each and every one of you to challenge everything you are being told and never take it on face value just because the person is teaching the class or addressing you. Strive to disprove everything they are telling you and if you can’t disprove it then you end up validating claims made by that instructor or so called expert.
That is what a journalist used to do in this country!
Had Ms. Davis done her job, she could have found out that the reason the County Board Chairman was not present was for numerous reasons. One, he had a prior commitment that night to receive an award for his work on saving the taxpayers a small fortune. The other reason was that he, as did the State’s Attorney, felt the meeting failed to comply with the Open Meetings Act.
I pray for the good people in Iroquois County who have been hoodwinked into believing the garbage spewing from some of their hired guns and public officials. They know not what they are doing!