DANVILLE, IL. (ECWd) -
COMMUNICATIONS WITH ASSISTANT STATE’S ATTORNEY
This is a new style of answering a letter, but we felt this way was best because of the many statements it contained that needed addressed. So this reads as a conversation of sorts...you can read the public documents here, and then read our answers if you like. Part 1 is here.
DONAHUE: "A potential buyer who bid a lower price at the auction approached the County through the auctioneer and said we will come up to the bid price of $10,000.00 an acre for the tillable farm land if you consider transferring as part of the sale the untillable acres."
ECWd: True, however, the operative word here is "consider", meaning not a mandatory transfer only that a transfer is "considered".
DONAHUE: "That requirement was in the sales contract."
ECWd: The “requirement” was for the county to CONSIDER transferring the untillable acres. They could have “considered” it and declined the transfer while still receiving the same price for the tillable acres.
DONAHUE: "They also promised to demolish a building and clean up the area which had become dump site, at their cost."
ECWd: This part was not in the offer, and was not in writing that we could see. Are we reduced to just taking someone’s word for it? I wonder if that would stand up in court?
DONAHUE: "In exchange for those two items, a higher cash value on the farm and the promise to demolish a building and clean up the site, the County agreed to take to the Board the issue of transferring the surplus or unneeded acreage to the farm buyer."
ECWd: The higher cash value was for the tillable acres, not for the untillable acres! This "higher cash value" is a point Weinard and Donahue kept repeating during the board meeting in an attempt at creating confusion with the board members. Again, the "higher cash value" had absolutely nothing to do with the additional acreage.
DONAHUE: "The land is landlocked currently."
DONAHUE: "Anyone but the adjacent farm owner would have to access the area by driving through County property, going through Songer Cemetery or building access across a ravine.
ECWd: Not true – but does prove our point about your previous comment. Again, it is not landlocked. I guess we need to define "ravine": "a small narrow steep-sided valley that is larger than a gully and smaller than a canyon and that is usually worn by running water". By this definition, this is not the appropriate word to use.
DONAHUE: "It does have a substantial amount of waste and a building in need of demolition on it."
ECWd: Define "substantial" and provide an inspection stating the building is in need of demolition.
DONAHUE: "Absent the sale of the farm ground, it is unlikely that it would be sold as it has little value to anyone else."
ECWd: Really? Did you ask anyone else or offer it to anyone else? You cannot say that when the county NEVER offered it to anyone – there were cash offers prior to and after the vote! $25,000 was offered, is that little value?
DONAHUE: "Regardless of that, the County by considering the issue and voting to find that the property was surplus and not needed for a public purpose and could be transferred as part of the sale of the tillable farmland properly exercised its power to sell and convey."
ECWd: Sell and convey...“sell and convey”... Donahue tries to insinuate the county “sold” the property and received something for the untillable acres – it received NOTHING and was a gift
DONAHUE: "Mr. Hartke and Miles suggest that it should be the subject of bidding. There is no such requirement under the County Code as opposed to the Township Code. If the State had desired to impose a bidding requirement they clearly could have done so and obviously chose not to do so."
ECWd: You are correct that the statute does not require bidding, however, the Illinois Attorney General and the Illinois Supreme Court have already set precedence, no need to put it in a statute. The precedence is to sell it for the most it will bring on the market - anything less constitutes a gift of the remaining value and the county does not have the power to make gifts. The statute does not say you can give it away either, or barter it away, or "trade" it to someone who will clean up the small amount of trash on it, or give it away to avoid "future maintenance" on it.
Here is where he really started shoveling it in…
DONAHUE: "In the Attorney General Opinion cited by you, the question involved no exchange of anything of value, which is different. While it is true that property cannot be merely given away, it can be conveyed for something of value."
ECWd: It was no different, it was talking about leasing office space for less than market value. The same concept - getting less than market value for public real estate. You stated it cannot be given away, then why did the county GIVE it away for nothing in return? You quoted the statute saying it doe not have to be put out to bid, so where does it state you can barter it away? ...“sell and convey”...
DONAHUE: "Nothing in the opinion requires a bidding or auction process. Clearly, public officials must obtain fair value for property."
ECWd: The Supreme Court says it must be sold for the highest it can bring on the market – The AG Opinions stated anything less than full market value would constitute a gift of the remaining value - you say it yourself that "Clearly, public officials must obtain fair market value for property". Then why did you assist the county in getting far less than fair market value, especially considering you do not even know what fair market value is at this point. I can say it is at least $25k, because that is what has been offered to this date.
DONAHUE: "Here there was a considerable value obtained in terms of an increased bid [price] as well as the promise to demolish and clean the lot."
ECWd: WRONG again. There was no increase in bid price contingent on obtaining this real estate. The county board had to "consider" it, but could have and should have declined after considering it, all without affecting the sales price of the farm acreage. Chairman Weinard and yourself even stated so during the meeting when you were asked that specific question.
DONAHUE: "The bid price increase (an increase of $214,470.00) and the value it represented was shown to the Board and was considered by the Board as part of the reason to make the transfer part of the sale."
ECWd: Once again you are trying to confuse the issue. The "bid price increase" was for the tillable acres, NOT for these untillable acres – it was even stated numerous times during the meeting that the bid price WAS NOT contingent on transferring this untillable acres. The county would have received the exact same amount of money without the gift of this real estate.
DONAHUE: "The review of the condition of the property was part of the process. Consideration as defined by the law can take many forms, but at heart is a bargained exchange to do something such as pay money, or the act or not act in a certain way, such as demolishing a building and cleaning the area at your own cost in exchange for ownership. Either concept supports the notion that this was a bargained for exchange."
ECWD: Where does it state in the statute that a bargained exchange can take place in reference to county property? Wouldn't you have to know the real value on the market of the real estate prior to any bargaining (if it was allowed)? Once again we are back to the statute that you gleefully quoted: "SELL AND CONVEY" does not mean "bargained exchange".
DONAHUE: "The documentation of the value was available to the public and proper notice was given as required by law."
ECWD: WRONG – No documentation of the value of the "additional" acreage was ever given to the public and proper notice was never given (unless you mean meeting notice). He implies that this parcel was part of the farm land auction when it was never considered as part of the land auction, and there was NEVER any documentation of this parcel’s value at any time, ever.
DONAHUE: "There was no impropriety. The County received an increase in price in the amount of $214,470.00 as well as the value of the demolition and cleaning cost and the freedom from future care of an area being used improperly as a dump site."
ECWD: WRONG again – the increase in price was for the tillable acres and nothing else. Where is this "demolition and cleaning" mandated in writing? Now he throws in the “freedom from future care” just in case nobody bought off on the other excuses. That one stinks too.
DONAHUE: "That is more than fair value for 3 to 4 acres of land currently not accessible except by driving through the Animal Shelter driveway."
ECWd: PROVE what fair value is and quit lying about it being only accessible by driving through the Animal Shelter driveway. ...“sell and convey”...
Our final statements for this part of the article:
The following statements were included in the initial email to Mr. Donahue. The following explain that what the board did with this real estate was not the proper thing to do.
This excerpt from Sherlock v. Village of Winnetka further explains how this should never have been allowed to happen:
- Counties hold property in trust for the benefit of the inhabitants of the county and they are “bound to administer it faithfully, honestly and justly, and if it is guilty of a breach of trust by disposing of its valuable property for little or no consideration, it is regarded as acting on behalf of an individual. Using forms of legislation in committing such a breach of trust does not make any difference in the act. It will not be considered an exercise of political power for public purposes, and the privilege of exemption from judicial interference terminates where legislative action ends.”
- In my opinion, certain Vermilion County board members acted in a breach of trust in voting in favor of this resolution. The fact it occurred during a public meeting does not make it legal and they crossed the line between legislative action and acting on behalf of the individual that would gain title to the real estate. This property was given away with no consideration in return.
- Since the donation of real estate cannot serve a legitimate public purpose, I am also of the opinion that these board members violated Article VIII, Section 1, of the Illinois Constitution, where is states that “public funds, property or credit shall be used only for public purposes”. The gift of this property was not a public purpose; the board was acting on behalf of a private individual, not for the benefit of the county residents.
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