Sangamon Co. (ECWd) –
The Village of Chatham’s Mayor Gray was one of the early Kingpins in the creation of what is known as the South Sangamon Water Commission. The creation of that new public body was done with a resolution adopted and signed in April of 2010.
The statute that authorized this action is Division 135 of the municipal code, found at this link. In the third paragraph, you will find the following language, bold emphasis added.
“Whenever any municipality determines to pay, to advance or to obligate itself for its proportionate share of development costs as above provided, it shall adopt an ordinance declaring its intention to do so, fix the maximum amount of its share of the cost it proposes to pay, to advance or to obligate itself for, and the period over which it proposes to pay its obligation (not exceeding 5 years) and the maximum amount to be paid annually, if such obligation is to be paid in installments. The time of payment of any such installment obligation may be extended for a period of not exceeding five years from the final maturity date of the original obligation.”
The term “shall” is a mandatory statutorily directed action. In short, it’s not optional. With that in mind, the resolution signed by none other than the President of the Illinois Municipal League and Village of Chatham President appears to have failed to meet the statutory mandates outlined in Division 135 section 11 of the Municipal code.
There are four “shall” mandates that should be found in the resolution however it appears three of them are missing.
- adopt an ordinance declaring its intention to do so (Complied with)
- “fix the maximum amount of its share of the cost it proposes to pay, to advance or to obligate itself for”
- “the period over which it proposes to pay its obligation (not exceeding 5 years)”
- “the maximum amount to be paid annually if such obligation is to be paid in installments.”
Reviewing the resolution we find that Section 3 outlines the cost share to the Village of Chatham is going to be $6,300,000.00 plus an amount equal to 90% of the interest due on Bonds, in addition to any other sums the Village expends on behalf of the project.
So what is the fixed maximum amount?
The whole purpose of having a ‘fixed” maximum amount is so that the taxpayers know what they are getting into. In this case, there is no fixed amount. For those that want to claim the $6.3 million plus the other costs are the maximum amount, we challenge you to tell us what are those other costs that are not listed in the form of an “amount”?
The payment obligation period shall not exceed 5 years according to the statute. Can anyone find in this resolution what the obligation period is?
“agrees to pay the Obligation on or before its due date and to include an amount sufficient to pay the Obligation in the next succeeding appropriation ordinance and each year thereafter until paid in full.
The obligation period shall be a period over which it proposes to pay its obligation.
What is that obligation period (time frame)?
The last mandatory obligation is to list the maximum amount to be paid annually if such obligation is to be paid in installments. Considering the language of the resolution points to approriations for each year thereafter until paid, its safe to assume the payments are being paid in installments. If that is in fact the case we have one question:
What is the maximum amount to be paid annually on this obligation?
Considering the Village President is also the President of the Illinois Municipal League, we can only wonder what that organization is really doing when it comes to ensuring proper guidance and direction to our local municipalities.
All indications are there are key mandates missing from this resolution creating yet another government body in Sangamon County and the attorney who drafted it should be held accountable.
I raised these concerns during public comment at the last committee meeting along with other concers we have found, however, no one wanted to address these particular issues for some reason unknown to us at thist time.
Another interesting note in this resolution is the fact it contains an Unconditional Obligation clause and no grounds for termination that we can find. Now I am no contract attorney……or any other kind of an attorney, but in order for most contracts to be valid both parties are required to uphold their end of the agreement and when they do not there is a means of terminating the contract. Not the case in this one from what we are reading.
In addition, government contracts and resolutions MUST comply with statutory obligations to be valid. Considering this resolution binds the Village financially to the SSWC, and appears to do so without mandatory obligations outlined in the resolution, one may well attack the legality of this resolution as a means of cutting ties to the SSWC.
Stay tuned for further in depth review of the resolutions and bond agreements that also fall short of mandatory obligations and further exposure of all the players in what appears to be a complete boon doggle that a select few have profited from quite nicely.
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