June 3, 2014 · 0 Comments
IROQUOIS CO. (ECWd) –
Is anyone listening in Iroquois County?
Taxpayers, it’s your money and there seems to be an attitude that your elected officials don’t have to answer to you or the law when it comes to the spending of your money. I totally support spending it on things that it was intended for, but can anyone give me one good reason we spend money on things that the law says we can’t?
What makes this matter even worse is one of the people involved in the illegal acts is the sitting Sheriff Derek Hagen, the brother of the infamous Cary Hagen, former financial coordinator for the now debunked Ford-Iroquois Public Health Department. Does it run in the family?
If we have said it once, we have said it a thousand times, public bodies only have the power granted to them by law. It’s such a basic concept yet to this day people violate state statute and do what they want with no authority to do it. Iroquois County ETSB is yet another example of lawlessness in that county, even with a Sheriff sitting on the board!
The ramifications of these illegal actions are tremendous once understood. The county may be facing $100’s of thousands of dollars in expenses to return the funds illegally taken from emergency agencies.
Action taken with no statutory authority:
Let’s take them one at a time!
1. Joint Dispatch Created –Under section 15.4 of the ETSB statute, a “joint” board can be set up but that means the “ETSB” no longer exists.
(Any 2 or more municipalities, counties, or combination thereof that impose a surcharge under Section 15.3 may, instead of establishing individual boards, establish by intergovernmental agreement a Joint Emergency Telephone System Board pursuant to this Section. The manner of appointment of such a joint board shall be prescribed in the agreement.)
As everyone in Iroquois County knows, ETSB still exists so they DID NOT follow the law! Even more interesting is the agreement that established the Joint Dispatch Board reflects it was set up to be a “Policy Committee“, which most people know has no power to make decisions or sign into contracts! Committees are advisory boards that provide their input to the ones making the decision, which in this case should have been the ETSB. All “ACTIONS” taken by this board are null and void considering they were never given any power to take action! (Click here to see the agreement and note the 4th paragraph on the first page)
Cost to the county? Any funds paid to any of those board members should be recovered because the agreement failed to outline any funding for those board members. I suspect we will find that they were getting paid at a minimum mileage reimbursement as has been the case for the ICOM board.
2. Creation of ICOM through intergovernmental agreement – First we must look at WHO can enter into an intergovernmental agreement (IGA) and then apply that language to the case in Iroquois County.
(5 ILCS 220/2) (from Ch. 127, par. 742)
Sec. 2. Definitions. For the purpose of this Act:
(1) The term “public agency” shall mean any unit of local government as defined in the Illinois Constitution of 1970, any school district, any public community college district, any public building commission, the State of Illinois, any agency of the State government or of the United States, or of any other State, any political subdivision of another State, and any combination of the above pursuant to an intergovernmental agreement which includes provisions for a governing body of the agency created by the agreement.
Reading the IGA we can see that the former “Committee” created in 2002 has now been renamed “ICOM” with an IGA dated December of 2011. A committee has no authority to enter into contracts or IGA under state law. Only “Public Agencies” may enter into an IGA. The Creation of the Joint Dispatch Committee, which got morphed into ICOM was done without any legal provisions in the law for the governing body of the agency. In short, when the law is silent you can not do it! The above paragraph is pretty clear on this point and I underlined it for clarity.
In addition, according to Iroquois County State’s Attorney Jim Devine, that specific agreement is null and void because it was never voted on by the County Board. I contend it’s null and void because you can’t enter into an IGA with an entity that is not a public agency! (Click here to see the Intergovernmental Agreement that created ICOM)
3. ICOM entering into Contracts with Emergency Service entities – As has been explained, ICOM has no authority to enter into contracts. In addition, since the ICOM agreement is null and void, each and every contract they entered into is Null and Void and the funds collected through those contracts could be recovered by each and every one of those emergency agencies and case law supports the ability to recover those funds!
4. Billing for Dispatch –We have seen this with numerous agencies and it’s completely illegal!
From the Managing Director of 911 at the Illinois Commerce Commission, who has over-site authority for 911 – “There is nothing in the Emergency Telephone System Act that addresses this issue”.
The “nothing” she is referring to relates to my question of; can an ETSB bill emergency services for dispatching emergency calls?
Not satisfied with the Managing director’s opinion then lets look at the statute and see what it requires.
(50 ILCS 750/10.2) (from Ch. 134, par. 40.2)
Sec. 10.2. The Emergency Telephone System Board in any county passing a referendum under Section 15.3, and the Chairman of the County Board in any county implementing a 9-1-1 system shall ensure that all areas of the county are included in the system.
What is the system?
“System” means the communications equipment required to produce a response by the appropriate emergency public safety agency as a result of an emergency call being placed to 9-1-1. (Click here for statute)
15.4(c) All moneys received by a board pursuant to a surcharge imposed under Section 15.3 shall be deposited into a separate interest-bearing Emergency Telephone System Fund account.
The law is so specific it tells you where you’re to place the funds received and outlines the source of those funds, which is the surcharge imposed. Does ANYONE read in that section, or anywhere else for that matter, that they can receive funds from billing emergency services? No they do not. If the legislature would have wanted that to be a source of revenue they would have written the statute with that language and told you where to put that money. As we can all “read and comprehend”, the statute is VOID of any such language so we now know it’s illegal for the Iroquois County ETSB to bill for Emergency Services because the law does not allow it.
I think this matter is a willful violation of the law, which constitutes Official Misconduct, because they KNOW the law does not permit it!
“There is no specific statute which allows charging for dispatch. “
That was the response from the ETSB Director. The same person that stood before the County Board recently explaining how she came up with a great plan she implemented based on population and charges for dispatch. She followed the above statement with this lame excuse trying to justify the illegal act.
“The Emergency Telephone System Board and ICOM can enter into contracts based on the authority found in the Emergency Telephone System Act and the Intergovernmental Cooperation Act. “
Sorry, but ICOM can not enter into contracts because they are not a public agency, and even if it could, it does not permit those people to create a new local law to take money from other public agencies unless the statute they operate under allows it, which they know it does not!
Not convinced yet?
“The funding of the ETS Board is also dependent upon the county since the Board has no independent powers of taxation.”
ETSB, are you reading and comprehending? You have no power to tax, which is what it’s called when public bodies take in revenue! That quote is directly out of the Attorney General’s Opinion 90-046, which was provided to the Iroquois County ETS Director. Your funding is dependent upon the county who is the sole entity that controls the surcharge on peoples phone lines!
For all those citizens in Iroquois county, how does it feel to pay your Fire Protection District tax, that is supposed to be used to protect your property, and now find out that not only are your tax dollars not being used legally in your own district, but you are paying a surcharge on your phones as well. Nothing like getting hit twice for the same service!
5. Contracting with a Private Attorney –
A recent FOIA to the ETSB generated this response pertaining to their hiring of a private attorney.
“The Emergency Telephone System Act allows the ETSB to enter into contracts. This includes a contract to hire an attorney. The State’s Attorneys Act allows the State’s Attorney to appoint special state’s attorneys if the state’s attorney is interested or unavailable.”
Wrong! The ETS Act does not include any such permission to enter into a contract to hire an attorney! The law specifically spells out what you are authorized to spend ETSB money on and an attorney is NOT one of those items!
From Attorney General Opinion 90-046, which was provided to the ETSB Director – “A single county ETS Board is not denominated a body politic and corporate. Consequently, the entity could not sue or be sued in it’s own name. (Mayes v. Elrod (N.O. Ill. 1979), 470 F. Supp. 1188, 1192; Lilly v. county of cook (1978), 60 Ill. App. 3d 573, 579-90.) Although an ETS Board is granted certain statutory powers exercisable only by its governing board, the powers and duties of a single county ETS Board are defined by the county”
“Because the county board exercises authority over a single county ETS Board through its powers to create the Board, appoint its members and control the level of its funding, it appears that the Board is an agency of the county. (See also 1974 Ill. Att’y Gen. Op. 107; 1973 Ill. Att’y Gen. Op . 108 (county health department is a county agency) : opinion No .NP-813, issued October 15, 1974 (regional planning commission is county agency); 1977 Ill. Att’y Gen. Op . 71 (road district is not a county agency); 1973 Ill. Att’y Gen. Op. 181 (forest preserve district does not constitute a county agency); and 1970 Ill . Att’y Gen. op. lll (community mental health board is an agency of the county) . ) Although it possesses certain powers which only the ETS Board may exercise, the Board is not an autonomous, independent unit of government. Accordingly, as a county agency , it appears that it is the duty of the state’s Attorney to provide legal representation to an ETS Board which is established by the county
For those that think this is no big deal, think again. We had the very same issue with our local ETSB and had to take legal steps, which lead to the firing of the attorney and recovery of the funds paid to him! The same should happen in Iroquois County! (Click here for full coverage of that event) . Finally, a State’s Attorney does not possess the authority to appoint a special state’s attorney, only a Court (Judge) can do that.
6. ETSB leasing property from the county – As outlined above, the ETSB is a body of the county and is not a separate public agency. Because of that, they cannot enter into a contract with the County to lease property. In short, doing so means the County is leasing property to itself and that is not permitted! It comes back to the basic question of who can be sued? ETSB can’t because they are a part of the county. If they have a contract between the county and ETSB and one side defaults who can the other side sue? So as you can see, yet again, people are asleep at the wheel in Iroquois County and not following the law!
Can anyone explain how full time public officials, one being the Director of ETSB, and the other the Sheriff of the county, can be a party to all these unlawful actions? Are they not paid enough to read? Are they unable to comprehend the law? If that is the case with the Sheriff may we suggest resigning from office?
Clearly acts have been taken by the entire group of people that violate numerous laws and clearly have taken money from local emergency service operations illegally. Those actions must be dealt with and I believe at a minimum, the amendment to the ETS statute that passed last year, that we had the honor of drafting, should be utilized to fix this clear problem of incompetence.
(50 ILCS 750/15.4) (from Ch. 134, par. 45.4)
Sec. 15.4. The corporate authorities of a county or municipality may, by a vote of the majority of the members elected, remove an Emergency Telephone System Board member for misconduct, official misconduct, or neglect of office. (Click here for link to the statute)
Is there ANYONE that can honestly say after reading all this that at a minimum the ETS Board and its Director have not neglected their office? Is it really a stretch to see that there actions constitute misconduct? I think any State’s Attorney worth their salt could make an easy case for Official Misconduct all things considered.
We have already seen the improvements replacing the FIPHD board members made so I don’t think it’s asking to much to replace each and every one of the current ETSB members as the records is clear, they have NO CLUE what they are doing and if they say they do, charge them with Official Misconduct!
People of Iroquois County, Wake Up, you are being financially raped!
By Kirk Allen
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