McHenry Co. (ECWd) –
We have been informed that the Township Clerk, Karen Lukasik, is claiming the Township Board can’t hold a meeting unless she is present.
She could not be further from the law if she tried, however, it would not surprise us to find out the Township attorney supports her position, which is commonly backed without statutory language on the actual obligations found in the law. Commonly referred to as “we have always done it that way”.
What does the law say?
Conduct of Township Meetings (60 ILCS 1/40-10) Sec. 40-10. Clerk of the meeting.
(a) The township clerk, if there is one and he or she is present, shall act as clerk of the meeting and shall keep faithful minutes of the proceedings in a book to be known as the township record. The clerk shall enter at length in the township record every order or direction and all rules and regulations made by the meeting. The entry shall be signed by the clerk and the moderator of the meeting.
(b) This Section is subject to the Local Records Act.
(Source: P.A. 82-783; 88-62.)
The first section makes it clear. If there is a clerk “and” he or she is present, she acts as Clerk of the meeting and shall keep faithful minutes.
What does it mean when they say if he or she is present?
It points to the fact the Clerk is not required to be at the meeting, otherwise, the legislature would have made it a duty to attend the meetings, as they did for an appointed Deputy Clerk. Noting the above conduct of meetings statute applies to the Annual Meeting, we must look further and it appears to be clear, had the legislature wanted the Clerk to be the one required to attend both Township Meetings and Township Board meetings, they would have said so, just as they did for the Deputy Clerk. The fact the law is silent on mandatory duty to attend for the Clerk, we find it unfathomable that the Board can’t hold a meeting without her.
(60 ILCS 1/75-45)
Sec. 75-45. Deputy clerk.
(a) The township clerk, when authorized by the township board, may appoint one deputy clerk.
(b) The deputy clerk has the power and duty to do the following:
(3) Attend township meetings and township board meetings and take minutes of those meetings.
So what does a Township Board do when the Clerk goes on vacation and there is no appointed Deputy Clerk yet a meeting has been called? In the case of Algonquin Township, they are being told they can’t hold a meeting.
Wrong Answer!
They are bound by the Open Meetings Act!
(5 ILCS 120/2.06) (from Ch. 102, par. 42.06)
Sec. 2.06. Minutes; right to speak.
(a) All public bodies shall keep written minutes of all their meetings, whether open or closed and a verbatim record of all their closed meetings in the form of an audio or video recording.
The responsibility to keep minutes when the Clerk is NOT present and there is no appointed Deputy Clerk falls on the Public Body, which is the Township Board. The Clerk is NOT part of the Public Body as it applies to the Open Meetings Act. That is based on the fact a public meeting is based on a majority of a quorum of the Public Body when public business is discussed. In the case of Township Government, the Township Board is made up of 5 voting members; four trustees and the Supervisor. The Clerk has no vote, therefore is not considered towards the members present.
It is the duty of the Public Body to keep written minutes, which is the Township Board, unless the Clerk is present or they have an appointed Deputy Clerk.
To drive this point home, once the Township Board records the minutes, then the Clerk has an obligation under the law.
(60 ILCS 1/75-10)
Sec. 75-10. Township meeting records. The township clerk shall record in the book of records of the township the minutes of the proceedings of every township meeting held in the township and shall enter in the book every order or direction and all by-laws, rules, and regulations made by the electors at any township meeting.
The confusion for many comes from two elements. Record in the books is not the same as taking the minutes.
Note that it does not say she is to take the minutes. Rather it states she is to record in the book of records of the township the minutes of the proceedings. Who actually takes those minutes is dependent on who is present and if a Deputy Clerk has been appointed. For example, if the Deputy Clerk took the minutes, the Clerk has a duty to record in the book of records of the Township the minutes taken by the Deputy Clerk. When the Clerk is not present, the Deputy Clerk has the power to record the minutes into the book of records of the Township.
There is no statutory language that requires the Clerk to be present and in fact, Township code points out that she may not be present when they instruct it is her duty to record minutes “if” she is present. Clearly, that is not a mandate to be present as found with the Deputy Clerk duties.
Taking the position the Township Board can’t meet without the clerk being present is nothing less than giving the Clerk total power to control when a meeting is going to be held. That was never the legislative intent!
We challenge the Clerk, TOI, or any attorney to disprove the above opinion on this statutory construction.
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13 Comments
Danni Smith
Posted at 12:58h, 28 NovemberPaul Smithton-as pompous an ass you are and are so many attorneys who play with the law and its meaning, giving a legal opinion is part of free speech. Practicing law without a license is not part of free speech. There are so many attorneys who know so little and obtain a license for meaningless but profitable “legal” work.. I cite, as example, the tax appeal attorneys-part of a corrupt system in which they earn a living by challenging an assessed value, always granted to keep their donations coming to the corrupt system, but never, ever, challenging the corrupt system. And that is my legal opinion, and tough if you think I don’t have a right to one and the right to express it. Further, anyone acting pro se is acting upon and giving an express legal opinion AND the court rule requires the hearing officer give deference to the pro se plaintiff or defendant. Now, on point, future meetings are in doubt due to knowledge of the whereabouts of the missing steno pad, maybe some company, the fulltime job, the snow, the rain, the heat, and Polish, Russian, Hispanic, and Greenland’s holidays..
Paul Smithton
Posted at 11:17h, 27 NovemberFraming it as a “statutory construction,” or whatever pseudo-legal terms you want to (mis)use, isn’t some sneaky way around the unauthorized practice of law. Neither is the cute little disclaimer. You’re still giving advice which requires the use of legal knowledge.
Kirk Allen
Posted at 11:26h, 27 NovemberFeel free to contact the ARDC. https://www.iardc.org/
We do not give up our First Amendment right to express our opinions on any matter, to include those that require the capability to know and understand what statutory construction is and how to apply it.
Paul Smithton
Posted at 11:56h, 27 November“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Okay, statutorily construct this one for me. How does voluntarily giving a legal opinion invoke the first amendment?
Kirk Allen
Posted at 12:33h, 27 NovemberFirst you must understand the terminology. You claim I gave a legal opinion. That is not true as only lawyers can give legal opinions. I gave my personal opinion on a local government matter by reading and applying the statute applicable to the situation. Doing that is exercising my First Amendment right both under my free speech rights and freedom of the press.
Paul Smithton
Posted at 12:51h, 27 NovemberThat is like saying you can’t make a quacking noise since only ducks can quack.
If your defense, that it isn’t a legal opinion because only lawyers can give those, held any water, there would be no such thing as the unauthorized practice of law, since every single person who was accused of it could simply say “it’s merely my opinion on what the law says and how it applies to a given set of facts, not legal advice, because only lawyers can give legal advice.”
Again with the First Amendment. I see where it says what Congress can’t do, but I don’t see where it gives you a positive right to say whatever you want. What am I missing?
Kirk Allen
Posted at 13:10h, 27 NovemberPaul, I am sure Indiana University has a library where you could research this. Unauthorized practice of law is a when people actually are acting as an attorney when they are not licensed to do so and have a client. That is not what we do. We have no client and are not representing anyone in our exercise of free press. The application of our Constitution and Bill of Rights is a read worthy of your time. I would start with the Federalist Papers that give the intent behind their writing of the constituion. Then read case law on freedom of speech. Case law comes from the Supreme Court and appelate court and there is a long history of what constitutes free speech.
Paul Smithton
Posted at 14:40h, 27 NovemberOh, okay, I saw the part where it said that the unauthorized practice of law is an action which requires legal knowledge and skill in order to apply legal principles and precedent, but not the part about requiring a client or pretending to be a lawyer in court. Wanna send that case over when you find it? I mean, if you have time in between all of that statutory construction you’re doing. I know that and tracing IP addresses must keep you pretty busy.
Now, back to the original question. Where in the First Amendment are you given a positive right to say whatever you wish? You’ve cited the federalist papers and “case law,” which you so helpfully defined, but you really haven’t answered the question. Where in the First Amendment (or any of the case law) does it say that the First Amendment gives you unfettered right to say whatever you want?
Kirk Allen
Posted at 15:12h, 27 NovemberPaul, I don’t spend time tracing IP addresses. It shows up when you leave comments. I did not say I have a right to say whatever I want so don’t try to expand this into something it’s not. This link explains it. http://ilga.gov/legislation/ilcs/ilcs3.asp?ActID=1853&ChapterID=50
After your done reading that, read up on In re Howard, 721 N.E.2d 1126, 1134 (Ill. 1999), or People ex rel. Chicago Bar Ass’n v. Goodman
, 8 N.E.2d 941, 947 (Ill. 1937)
As outlined in People ex rel. Chicago Bar, one of the considerations is “The character of the act done”. Our work is in the work of free press to express our opinions on matters related to local government. We are not giving legal advice to anyone nor are we charging for our work. If you are so confident that we are breaking the law then please file an ARDC complaint.
As far as my constitutional right to free speech. I am not going to waste any more time on the matter. We know our rights and will continue to exercise them.
Theodore Hartke
Posted at 22:31h, 27 NovemberDear Paul Smithton,
I think anyone can give a legal opinion or personal opinion or professional opinion whenever they want. I think that “unauthorized practice of law” occurs when a person attempts to represent another party in a legal matter. I don’t think the Edgar County Watchdogs are attempting to stand for or represent any particular person or entity. They don’t speak for or on behalf of anybody except themselves. I’m not a doctor, but if you sneeze in your hand, I would probably advise you to go wash it with soap and water before putting away the dishes which might be used by other members of your family.
Best regards,
Ted Hartke
1mmf27
Posted at 21:20h, 27 NovemberIs that your legal opinion? Where does the your circular logic end?
Dave
Posted at 07:58h, 27 NovemberWhy is it so difficult for these people to study the OMA
A. Lincoln
Posted at 04:32h, 27 November“(a) The township clerk, if there is one and he or she is present, shall act as clerk of the meeting and shall keep faithful minutes of the proceedings in a book to be known as the township record.”
In Illinois local government, have we come to the place where the meaning of the word if depends upon what the meaning of the word is, is?