Update: Naperville City Council qualification question –

NAPERVILLE, IL. (ECWd) –

Last Friday, November 21, 2014, Naperville uploaded a document (here) in response to my allegation that two of their councilmen were no longer qualified to remain in office (previous articles here and here).

While we applaud the city in their answering of questions raised during meetings and wish all public bodies would do likewise, we believe they are placing too much stock in the legal opinion obtained by the two councilmen whose eligibility are questioned.

As we suspected, it appears the city council will do nothing about their disqualification for office.

 From the City of Naperville

 The City claims there is no definition in the statue for the terms “arrears” and “other indebtedness” and no judicial determination as to whether late utility bill payments apply, and, that the statute does not expressly provide for a legal process to address councilmen disqualification for arrears in payment of a debt to the municipality.

Further stating that my claim the municipality has the authority to declare the seat vacant comes from a separate and unrelated section of the Illinois Municipal Code, and, the property interest that an elected official has to their office and the right to due process.

We do agree with their interpretation of the “de facto officer”  validity of actions.

The City then went on to include the legal opinion obtained by the two councilmen.

Our comments on this subject:

Removal from office … is not a punishment. Rather, it is simply a consequence of the officer’s failure to meet a condition imposed on him in furtherance of the public interest in good government. People ex rel. Taborski v. Illinois Appellate Court, First District (1972), 50 Ill.2d 336 341 278 N.E.2d 796, 799.

—The first court case the city cited dealt with “property rights of elected office” and the court determined that a simple pretermination notice, according to the Community College Act, to the trustee was notice enough. The second case does not claim that the only cause of action was a quo warranto, only that a quo warranto is a proper procedure. The third case cited, Kankakee v Morris, dealt with a question on the definition of “infamous crime” and whether sentencing to probation had the same disqualifying effect as sentencing to the state penitentiary. None of these cases deal with the issue at hand.

—The City appears to minimize the arrears in debt by stating multiple times that the debts have been paid and the councilmen are no longer in arrears. The problem with this attitude is that it flies in the face of the statute, which states: “A person is not eligible to hold a municipal office, if that person is, at any time during the term of office, in arrears in the payment…”

—As far as the legal opinion obtained by the two councilmen, we disagree with most of their opinion, and the following is our non-legal opinion:

The Illinois Municipal Code speaks for itself. It declares that an elected official of a municipality is not eligible to hold office if they become in arrears of a debt due the municipality at any time during their term of office. This is a clear distinction that people can become disqualified, after having been elected, sworn in, and taken their seat. Other paragraphs talk about qualifications to take the oath, or to be a candidate – this paragraph is about remaining qualified for the entire term of office.

A “debt” is anything owed, and “in arrears” means not paying the total amount due, on the date that it is due.

The Supreme Court has already decided that property taxes are a debt due to the county (not the municipality), and as such cannot be used as justification to  invalidate a petition or removal from municipal office. In other words, late property tax payments are not a disqualification. This is not to be confused with debt owed to a municipality.

While we understand that there are times when a person may inadvertently become in arrears of a debt, the pattern of payment of Councilman Wentz does not point to any inadvertent late payments, but instead suggests knowingly becoming in arrears of a debt due the city more than 20 months out of the past 24 months.

You can see HB 5839 (here) to change this paragraph is in Rules Committee and will likely not be passed as worded, simply because it also attempts to delete reference to disqualification for felony convictions.

The transcribed conversations between Kay and Currie deal mostly with late property taxes, and as I have stated before, property taxes are not a debt owed to the city.

In this transcript quoted by Ancel-Glink, who was ask to provide the opinion by the two councilmen that have late payments during their term of office, it is clear that Rep Currie likes the language as it is by saying “So I think the language is pretty sound and I stand behind it.” Currie’s only statement about the language being made more clear was maybe if a person inadvertently became in arrears of a debt without knowing it. Currie even mentions a “water bill“, so it is clear the legislative intent on defining “debt” is anything owed to the municipality.

There is already case precedence (here) that municipal fines are a debt owed. It even defines “debt” by stating: “Being in arrears of a debt owed to a municipality can involve common items, such as unpaid parking tickets or village utility bills.” In an Appellate Court case from 2011 (here), the Court determined that notice of a debt owed is not a requirement (or defense) for being ineligible for municipal office – this means that even if a person claims to not know a debt is owed, they are still disqualified.

Rep Kay’s main questions dealt with property taxes, which are a non-issue since the Illinois Supreme Court ruling.

Finally, to the issue as to whether the municipal authorities have the ability to declare a seat vacant:

The municipal code speaks for itself:

The opinion written that the city does not have the authority is wrong (in my opinion).

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=006500050HArt.+3.1+Div.+10&ActID=802&ChapterID=14&SeqStart=33500000&SeqEnd=35300000

<span style="font-family: Courier New; font-size: small;">Sec. 3.1-10-50. </span><span style="font-family: Courier New; font-size: small;">Events upon which an elective office becomes vacant in municipality with population under 500,000. </span><span style="font-family: Courier New; font-size: small;">(a) Vacancy by resignation.</span><span style="font-family: Courier New; font-size: small;">(b) Vacancy by death or disability...</span>

<span style="font-family: Courier New; font-size: small;">(c) Vacancy by other causes.</span>..

    
<span style="font-family: Courier New; font-size: small;">(1) Abandonment and other causes. A vacancy occurs in an office by reason of <span style="text-decoration: underline;"><strong>abandonment</strong></span> of office; <span style="text-decoration: underline;"><strong>removal from office</strong></span>; <span style="text-decoration: underline;"><strong>or</strong> <strong>failure to qualify</strong></span>; or more than temporary removal of residence from the municipality; or in the case of an alderman of a ward or councilman or trustee of a district, more than temporary removal of residence from the ward or district, as the case may be. The <span style="text-decoration: underline;"><strong>corporate authorities have the authority to determine whether a vacancy under this subsection has occurred</strong></span>. If the corporate authorities determine that a vacancy exists, the office is deemed vacant as of the date of that determination for all purposes including the calculation under subsections (e), (f), and (g).</span><span style="font-family: Courier New; font-size: small;">   (3) Election declared void... </span><span style="font-family: Courier New; font-size: small;">Sec. 3.1-10-5. </span>

<span style="font-family: Courier New; font-size: small;">Qualifications; elective office. </span>

It is clear, and I urge you to read the municipal code, that the legislature has determined which events cause a vacancy in office. It is not necessary to use a quo warranto action, although that is an option. The corporate authorities have the authority to declare the seat vacant for the reasons listed. Once they declare it vacant, the timeline for appointment to the seat kicks in. We know the city is not required to declare it vacant, only that they have the authority to declare it vacant.

If the legislature had wanted the municipality to only declare a vacant seat after a court ruled it vacant, it would not have included “removal from office” as an event which an elected office becomes vacant in paragraph (c)(1).

So, the vacancy has already occurred through the actions of the councilmen according to the Municipal Code.

Paragraph (B-5) is a qualification paragraph and does apply to elected officials already in office. It is a sub-paragraph of

Sec. 3.1-10-5. Qualifications; elective office.

All of this is listed in the same part of the Municipal Code that deals with qualifications, elections, appointments, and referendums.

The fact that it has never been tested in court against a sitting elected official, does not mean it does not apply or that the city does not have the authority.

Incidentally, this is not the only case where an elected office becomes vacant. Incidences of incompatibility of offices occur from time to time, and like this Code, the actions of the elected official determine the vacancy. The corporate authorities, or the court in a quo warranto, simply determine the action(s) occurred and the seat vacant as a result of the actions.

——————–

We welcome any questions or other opinions on this issue.