WATSEKA, IL. (ECWd)
For starters, the contract is invalid because it was never placed on a meeting agenda, which means it could never have been legally voted on and there are no records of any votes taken dealing with the contract that 911 Director Nita Dubble thinks she has.
For this article, we will go through the various provision within the alleged contract, and point out some very revealing faults within it.
Under “Term Of Employment” it mentions that she will “perform all the duties statutorily and customarily attached” to the position of 911 Coordinator. To find out what that actually means, we must look to the statute for the statutorily attached duties and to the Iroquois County 9-1-1 by-laws for any customarily attached duties. Finding none, this provision in invalid.
Additionally, the Administrative code pointed to as her duties in the contract, have been repealed. The Administrative Code section is already appealed as of May 2016, and the section in the ETSB Act pertaining to the ETSB duties will repeal on July 1, 2017.
We challenge the ETSB to point to any mention of a 911 Coordinator in the statute for starters. It’s rather difficult for a person to perform all the duties statutorily and customarily attached to a position that is never named in the law. The statutes pointed to in Part 1 make it clear what position is being employed. No such language can be found in the ETSB statute for the position of 911 Coordinator.
“The Evergreen Clause”
Evergreen clauses are not valid when applied to public employment contracts when those contracts are so lop-sided in favor of the employee that it places a restrictive undue burdensome on the public body. Additionally, under Dillon’s Rule a public body only has the power vested in it by the legislature, and since the Automatic Contract Renewal Act [825 ILCS 601/5) specifically excludes public bodies from automatic contract renewals, they are unauthorized since the public body was never vested with the power to enter into one. Had the legislature wanted these types of contracts to be part of local government powers they would have included in the statute.
We understand that her attorney / attorney for the past ICOM/ETSB Board (which had no authority to hire an attorney in the first place) wrote this contract and placed the burden on the public body by using the evergreen clause.
An ETSB does not have the authority to enter into an employment contract, let alone a multi-year, continuously renewing the contract because it “binds-the-hands” of future boards [Milliken v. Edgar County]. New board members are appointed every year, thus an organizational meeting should take place after each appointment so at best if it was legal for a contract, it would be limited to the one-year term of the board.
This alleged contract also states that unless a certain action(s) happen, the contract automatically amends and extends, however, that itself would be an “action” and any “action” taken must be placed on an agenda of a public meeting and voted on in public for the action to be valid. This contract was never placed on any agenda and therefore has never been amended or extended. “No action is action – the action of taking no action”
This contract also allows the coordinator to notify the board that she will engage an attorney to work on her behalf at the board’s expense – which would constitute an illegal act since the statutory legal counsel for the 9-1-1 is the Iroquois County State’s Attorney and any attempt at using public funds to pay for a private attorney (without the Court ordering it) is a crime.
In addition, the Savings Clause provides the simple solution for all of those wishing to insist she has a legal contract.
ln the event any section or portion of this Employment Agreement shall be held invalid or unenforceable by any agency or court of competent jurisdiction or by reason of any existing or subsequently enacted legislation, such decision or legislation shall apply only to the specific section or portion thereof specifically affected by such decision or legislation and the remaining sections or portions of this Employment Agreement shall remain in full force and effect.
Public bodies were not given the power to enter into automatic renewal contracts, thus existing legislation forbids such action and that section in the contract can be declared invalid by any agency, as in the ETSB. In addition, with the Evergreen Clause section invalid, this particular contract terminates March 25th, 2017. It would appear doing nothing more than notifying the employee there is no contract, extension or otherwise, she becomes an “at-will” employee at 12 am Saturday, March 25th, 2017.