July 24, 2016 · 1 Comments
DuPage Co. (ECWd) –
The final article on DuPage State’s Attorney’s letter to the county board chairman regarding compensation of elected officials.
The bottom line in the previous two articles as it is with this article, is that even if the car allowance, health insurance, dental insurance, life insurance, etc. are “authorized by state law” (keep in mind none of them are mandated by any law) – state law also requires the board to pass an ordinance setting the compensation of elected officials of the county. In passing the ordinance, they are telling the elected official and the public everything the elected official is authorized to receive. Anything received above what is in the ordinance is a violation of state law and county ordinance.
Compensation of State’s Attorney – starting on Page 14 of the letter (here):
First and foremost, any compensation received by the State’s Attorney can only be what is listed in the most recent compensation setting ordinance for the State’s Attorney. Nothing more. It is difficult to think that there are people who do not believe $41,000 + per year worth of health insurance and vehicle allowances are not compensation, but then again those are the people receiving the compensation in the first place.
The AG Burris’ Opinion clearly indicates that “the county board does not possess the authority to increase the State’s Attorney’s salary to an amount which is greater than that fixed by law” (page 2) – and again on pages 7 and 8 which goes even further requiring “express statutory provision authorizing such payment“.
Definition of “Express Provision”: The intent is to prevent a party from inferring an exception to the general rule that is not explicitly carved out. It requires that any exception to the rule be clearly stated and explained so that there is no dispute as to whether the rule (or an exception to it) applies to particular facts or circumstances. (defined here)
Even if, for the sake of argument, that all the additional compensation is expressly authorized in statute, which we don’t think it is, that compensation must be included in the county board ordinance setting the compensation – especially since all of it is optional and not mandatory (compared to social security payments, etc.).
The Illinois Constitution, Article VI, Section 19 [State’s Attorneys] states in part that: “…His salary shall be provided by law.”
In the above paragraph from page 14 of the letter, it implies that even though Counties Code, Division 4-2 provides the provisions for SA compensation, that the “now abolished Compensation Review Board” must determine the SA’s salary – and that the same section provides that it doesn’t prevent the payment of additional compensation to the SA out of the treasury of the county as may be provided by law.
Such salaries shall be paid to the state's attorney and the assistant state's attorney in equal monthly installments by such county out of the county treasury provided that, subject to appropriation, the Department of Revenue shall reimburse each county monthly, out of the Personal Property Tax Replacement Fund or the General Revenue Fund, the amount of such salary. This Section shall not prevent the payment of such additional compensation to the state's attorney or assistant state's attorney of any county, out of the treasury of that county as may be provided by law.
Even if we buy into the notion that a State’s Attorney can receive the Health Insurance provision in the Counties Code, and in the Illinois Municipal Retirement Fund – both of which “authorize” but do not “require” elected officials, including State’s Attorneys, to participate, the only legal way for the county to authorize their participation is by including those items in the ordinance setting their compensation. That is what is required by the counties code and that is what must happen (as provided by law).
As stated in Part 2, the most recent resolution authorizing a vehicle allowance does not specifically or expressly authorize one for the State’s Attorney, and even if it did, it would be invalid as a resolution/ordinance by a local government is not “law”, and resolutions/ordinances cannot be used to replace the requirement that it “be provided by law”. The difference being, in the case of the State’s Attorney, is that this vehicle allowance is compensatory as stated in the resolution (even though it did not specifically authorize the allowance for the SA) and there is no law which authorizes it. If applied using the arguments in this letter that the county must “provide for the use of ” is a statement intended for the “Office of the State’s Attorney” and therefore must be paid to the Office of the State’s Attorney and not the individual holding the office, and should probably been included within the budget for the office. There is a difference, for example, providing a county vehicle to use, is much different than providing $450 per month for a vehicle allowance, simply because that county vehicle can only be used for public business, not so much so with the monetary allowance.
Request Written Opinion from the Attorney General:
The State’s Attorney stated he would request an opinion from the Attorney General if asked, and we have previously asked DuPage County Chairman Dan Cronin to seek such an opinion. We are asking again that DuPage County seek an opinion from the AG which includes at a minimum the following questions:
Burris’ 1993 Opinion on State’s Attorney Compensation (here).
As with the previous two articles, we believe any and all compensation received by elected officials must be set in their compensation setting ordinances.
Hopefully we included everything in these three articles, if not, there will be another one.
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