DuPage Co. (ECWd) –
This morning I woke up to drink a cup of coffee and catch up on some reading, thinking today is going to be a day to relax.
Oh well, it is Illinois and I should have known there is no time to relax when people in our state government take a position there is no law that requires elected officials to attend meetings of the public body they were elected to.
The United States is a Republic with a Constitution and a Bill of Rights. Over the years additional Amendments have been adopted. I commonly refer to it as the rule book.
During the last COD board meeting I spoke to the concern of representation. John Kraft spoke about their oath of office and the signing of their name calling a meeting.
The Breuder Board made up of Trustees McGuire, Birt, and Wozniak, are refusing to attend meetings, thus the people of the district are being taxed without representation by their refusal to perform their duties. One of those three rogue Trustees is an attorney by trade and frankly I am surprised she (Birt) doesn’t see the 14th Amendment violation created by their actions.
Grab a cup of java as this is important!
I read the Chicago Tribune article and see the Attorney General’s office has stated: “there is nothing in state law that requires community college boards to meet regularly.” (Tribune Article here)
A few things must be understood about our laws and how they are applied. Statutory construction and the Incorporation Doctrine to name a couple.
The law states: “The board shall then proceed with its organization under the newly elected board officers, and shall fix a time and place for its regular meetings. It shall then enter upon the discharge of its duties. Public notice of the schedule of regular meetings for the next calendar year, as set at the organizational meeting, must be given at the beginning of that calendar year. ”
Questions related to the interpretation of that law start by looking at the plain language of the statute to discover its original intent.
Is there ANYONE that reads that statute, applying plain language, that thinks it means the board members dont have to attend meetings?
“Shall then enter upon the discharge of its duties”. How can you discharge those duties if you don’t attend the meetings? You can’t! What good is there in mandating the setting of regular meetings if the intent was not to require you to attend?
The courts can make an interpretation of the statute, however, we know from history, Courts typically will avoid issuing an interpretation that creates an absurd result which the Legislature did not intend. With that in mind, is there ANYONE that thinks the legislative intent of the statute was to make it ‘OK’ for the trustees to not show up to perform their duty? I am confident the courts would interpret that they are required to attend meetings to perform their duties.
Applying statutory construction it is clear to me, and many legal minds, the intent was for them to attend meetings regularly for the purpose of discharging their duties. Although it does not state, they must attend meetings, most would agree they can’t discharge their duties without attending, thus no need to say they have to attend.
McGuire, Birt and Wozniak have refused to discharge their duties, which brings us to the Incorporation Doctrine.
“The incorporation doctrine is a constitutional doctrine through which selected provisions of the Bill of Rights are made applicable to the states through the Due Process clause of the Fourteenth Amendment. This means that state governments are held to the same standards as the Federal Government regarding certain constitutional rights.” (Legal Institute)
The position of the Attorney General on COD is incomplete, and frankly very disappointing from a legal perspective. I seem to recall a very old principal that there can be no taxation without representation. COD, by lacking a quorum by actions of three trustees, has left its citizens without representation. Common law and the oath of office also requires the board to meet to handle the affairs of the district and to protect state and federal taxpayers. Same holds true for obligations owed to bond holders.
Our founders of this great country gave us the rule book and when it is applied, it works. That rule book known as our Constitution of the United States and the duly adopted Amendments clearly apply in this situation.
However, applying Constitutional matters would clearly be against the institution, not individual Trustees, because it is the institution that is taxing the people. Taking the case Federally would end up hurting the taxpayers and the institution which most would agree is not what we are trying to accomplish. We hope it would never come to a Federal case but it is an option to be aware of.
So how do we move forward?
On April 11th, 2011, Trustees Birt and McGuire took their Oath of Office as did Trustee Wozniak on May 7th, 2013. That oath failed to make any mention of obligation to our US Constitution or our State Constitution, unlike former Trustee Hamilton’s oath taken right after Wozniak. That fact is very concerning but we will cover that in another article.
The oath the three now rouge Trustees took did require them to faithfully discharge the duties of their office. They have violated that oath as they have failed to discharge the duties of the office by refusing to attend meetings.
The Tribune also reported the spokesman for the DuPage State’s Attorney said, “We’re looking to determine what options we would have to compel them to do their duty,” Berlin spokesman Paul Darrah said.
“compel them to do their duty”
It is clear with that statement, the DuPage County State’s Attorney has acknowledged three trustees are not performing their duty, otherwise there is no need to compel them to do their duty.
Our laws are there for a purpose, and the Official Misconduct statute is there for the purpose of compelling public officials to perform their duties or else face criminal prosecution. I called for citizens to file criminal complaints on this matter almost a month ago in this article. We know of a few such filings but clearly no action has been taken yet.
If we would start prosecuting these bad actors others would see that our laws have meaning and maybe we would see less non compliance with the law in our local government.
Mr. Berlin, don’t compel them to do their duties as that is not your duty. Your duty is to prosecute those violating the law, and it’s clear you have acknowledged they are not performing their duty, assuming the quote from the Tribune is accurate.
(110 ILCS 805/3-21) (from Ch. 122, par. 103-21)
Sec. 3-21. The board of community college districts shall have the duties enumerated in the Sections following this Section and preceding Section 3-30.
When you read all of the duties outlined that are prefaced with “shall”, it is clear these three trustees are not performing their duties and it is not just a matter of coming to a meeting.
In addition, the claim being made behind the scenes is that a meeting was held because of the definition of a public meeting in the Open Meetings Act. According to OMA, a meeting of a majority of a quorum constitutes a public meeting. However such a meeting does not meet the mandate outlined by law or Board policy because they specifically state, shall then enter upon the discharge of its duties and “for the purpose of conducting College business”, respectively.
Furthermore, another mandatory duty is the duty to approve minutes of previous meetings. This mandate is contained within Section 2.06 (b) of the Open Meetings Act, which states that “A public body shall approve the minutes of its open meeting within 30 days after that meeting or at the public body’s second subsequent regular meeting, whichever is later.” Citizens have a right to meeting minutes on a timely basis, and in this case are being deprived of that right.
Those mandates cannot be accomplished without a quorum, by law.
The Board fixed a time and place for its regular meetings as required by law. In December of last year and by verbal confirmation for the regular January meeting, three rogue trustees are refusing to attend the regular meeting scheduled by law. Board Policy outlines those dates and they are violating board policy by causing those meetings to not take place.
Although the Attorney General’s office may be correct there is no language that requires them to “attend” meetings, one must ask this simple question: How do you enforce the law that states they “shall then enter upon the discharge of its duties”. They can’t discharge their duties if they don’t come to a meeting. The action that must be taken in this case is not force them to come to a meeting.
They must be held individually accountable for refusing to discharge their duties, which is where the Official Misconduct statute should be applied.
So at a minimum, we can confirm that trustees McGuire, Birt, and Wozniak have refused to discharge their duties as mandated in the Community College Act, Open Meetings Act, and have violated board policy 5-115 by refusing to attend meetings. These actions lead to a Constitutional violation by the institution of the 14th Amendment because people are being taxed without representation.
Official Misconduct 20 ILCS/33-3(a)1 – “Intentionally or recklessly fails to perform any mandatory duty as required by law”
Three trustees have intentionally and recklessly failed to perform their mandatory duty as required by law. What is that mandatory duty?
It is much more than simply attending a meeting.
People are missing the big picture as to what these three are doing if they think this is a meeting issue. The law mandates them to perform their duties and all you have to do is look at the Community College Act and the Open Meetings act to see what those mandates are and rest assured, there are many.
(110 ILCS 805/3-21) (from Ch. 122, par. 103-21)
Sec. 3-21. The board of community college districts shall have the duties enumerated in the Sections following this Section and preceding Section 3-30.
When you read all of the duties outlined in the CCA that are prefaced with “shall”, it is clear these three trustees are not performing their duties.
I believe that if our top law enforcement office in the state can dismiss this as no mandate to attend a meeting then I believe that is an indicator as to why this state is failing the good people of Illinois.
Please consider a donation.
[wp_eStore_donate id=1]
