Cook County

Maine Township – Case law problematic for hired attorney’s opinion as well as Supervisor’s disregard for the law

Cook Co. (ECWd) –

Says Who and With What Proof?

“Also, in my opinion, the statute is one that is ameliorative in nature and should be broadly construed so that it meets the objectives of the legislature.”So says Maine Township Attorney Daniel Dowd.

Which is it with statutory construction?  Should they be broadly construed or strictly construed to meet the objectives of the legislature?  Often when we see attorneys claim statutes are to be interpreted broadly, it’s because when done strictly, their position crumbles.  We believe that is the case with Attorney Dowd and will lay out a multi-part series of articles exposing both his legal opinion and the one from the illegally hired attorney.  We do ask you keep in mind, we are not attorneys, as was pointed out by the Township Supervisor who is an ARDC disciplined provider of false information as an attorney. LOL

This article will focus on the illegal hiring of outside legal counsel by the Supervisor and Dowd’s opinion on that action.

Statutes are to be given their plain, commonly understood meaning and their true intent and meaning is found in the history, existing circumstances, and contemporary conditions of the legislation.

“Unless there is an indication of a legislative intent to the contrary, words in a statute should be given their plain, commonly understood meaning. (Illinois Power Co. v. Mahin (1978), 72 Ill.2d 189, 194, 381 N.E.2d 222.)”

“A cardinal rule of statutory construction in such instances is that this court must ascertain and give effect to the true intent and meaning of the legislature, as found in the history, existing circumstances, and contemporary conditions of the legislation. (People ex rel. Hanrahan v. White (1972), 52 Ill.2d 70, 73, 285 N.E.2d 129, cert. denied sub nom. Splinter v. Hanrahan (1972), 409 U.S. 1059, 34 L.Ed.2d 511, 93 S.Ct.562.)

“Unless there is an indication of a legislative intent to the contrary, words in a statute should be given their plain, commonly understood meaning. (Illinois Power Co. v. Mahin (1978), 72 Ill.2d 189, 194, 381 N.E.2d 222.)”

“In seeking the legislative intent, the court will consider the evil which the statute seeks to remedy and the goal which it seeks to attain, in addition to considering the statute’s language itself. People v. Dednam (1973), 55 Ill.2d 565, 568, 304 N.E.2d 627.”

 Dowd:  

It is my opinion that the supervisor was entitled to request an opinion from him on the legality of the hire in question as the authority to administer the general assistance program in my judgment of necessity includes the ability to seek a legal opinion that the administration of  the program is consistent with law.”

“It is my opinion,” “in my judgment.”

Note that he does not cite any statute or case law directly on point to the hiring of an attorney. Instead, he navigates a super freighter around the globe to dock it back in Maine Township and expects the board and the public to accept it.  Wrong answer!

The Plain language of the Township Code gives the Board the power to approve and fix the compensation of an attorney.  The only role the Supervisor has in that matter is the initial appointment, which is with advice and consent of the board.

(60 ILCS 1/70-37) Township attorney. The supervisor, with the advice and consent of the township board, may appoint a township attorney. The township attorney’s compensation shall be fixed as provided in Section 100-5

(60 ILCS 1/100-5) Township attorney and other employees; compensation. (a) The township board may employ and fix the compensation of township employees that the board deems necessary, excluding the employees of the offices of supervisor of general assistance, township collector, and township assessor. The township board shall fix the compensation of a township attorney appointed by the township supervisor under Section 70-37. The township attorney shall not be considered a township employee for purposes of the first sentence of this subsection.

Does anyone see anything in the plain language of the statute that gives the Supervisor the power to hire an attorney all on her own?  Had the legislature wanted the Supervisor to have such power under General Assistance, they could have clearly put such power in the statute as they did pertaining to employees who administer General Assistance.

Additional statutory history and case law point to the plain language of the statue.  The Board, and only the board are vested with the power as it relates to advising and consenting for a Township Attorney.  Note that General Assistance is a unit of Township Government and that means the Township Attorney is the legal counsel for all matters in the Township, to include; General Assistance, Collector, Assessor, and Highway Commissioner with a limited exception to that position.

(605 ILCS 5/6-201.19)   (Highway Commissioner) Have authority to hire legal counsel to perform legal functions for road districts where performance of such functions by the public official who would otherwise represent the highway commissioner would present a direct or potential conflict of interest. 

“A township cannot prevent a highway commissioner from hiring an independent attorney when the road district has a conflict with the township by refusing to put funds for legal fees in the road district’s budget. Newport Township Road District v. Pavelich, 2012 IL App (2d) 111317.”

“The best evidence of legislative intent is the language used in the statute itself, which must be given its plain and ordinary meaning. Kraft, Inc. v. Edgar, 138 Ill.2d 178, 189, 149 Ill.Dec. 286, 561 N.E.2d 656 (1990); People v. Tucker, 167 Ill.2d 431, 435, 212 Ill.Dec. 664, 657 N.E.2d 1009 (1995).”

Had the legislature wanted the Township Attorney to have the power to hire an attorney independent of the Board, they would have placed such language in the statute, as was done with the Highway Commissioner.

Now understand, I am not an attorney, but may I suggest one more minor issue for this educated attorney to think about before he provides future personal opinions and judgments as legal advice?

“As a general rule, when a municipal corporation has legal counsel charged with a duty of conducting the legal business of a government agency, contracts with other attorneys for additional or extra legal services are void.” – in State v. Volkmer, 1994

When the Board hires legal counsel to represent the Township they are bound by case law that limits the hiring of outside legal counsel to represent the Township.  The Highway code spells out that exception, which means they were given express power in that case.

There is an additional case law exception however it does not apply:

“There is a well-recognized exception to this principle which recognizes the implied authority of a municipal board or officer to hire counsel in the good-faith prosecution or defense of an action taken in the public interest and in conjunction with its or his official duties where the municipality’s attorney refuses to act or is incapable of or is disqualified from acting. Board of Supervisors v. Woodall, 120 Ariz. 379, 586 P.2d 628 (1978); Cahn v. Town of Huntington, 29 N.Y.2d 451, 328 N.Y. Supp.2d 672, 278 N.E.2d 908 (1972); City of Tukwila v. Todd, 17 Wash. App. 401, 563 P.2d 223 (1977).” – Found in State V. Volkmer, 1994

For all the reasons  above, this non-attorney is of the opinion, based on substantial statutory construction and case law, the Maine Township Supervisor DID NOT have authority to hire outside counsel without board approval, especially since the Township had already hired counsel to represent the Township.

We welcome attempts at proving us wrong…………as we are not attorneys!
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