Are some Attorneys for public bodies failing the public?

DuPage Co. (ECWd) –

After reading today’s Daily Herald piece on a Community College Trustee holding two public offices it was of no surprise those who didn’t want David Olsen are still trying to figure out a way to stifle the reforms taking place at COD.   Kory Atkinson has been behind the scenes leading that charge on many fronts, and we suspect DuPage County Chairman Dan Cronin may have his input on this matter as well, as both have been fighting the reforms at COD……….and both are attorneys.

When it comes to attorneys that represent public bodies, we have seen time and time again legal advice given that is in direct conflict with the law.  We need not look any further than the former COD Attorney Respicio F. Vazquez of Franczek Radelet P.C who actually assisted the COD Board of trustees in violating the law. (Read that article here)

The Daily Herold information is just as Disturbing.

“At the time, two mayors who went on to become county board members — Pete DiCianni and Gary Grasso — weren’t convinced Berlin’s conclusion was correct. They said lawyers advised them they could keep their municipal posts if elected to the county board.”

Any attorney that would give such advice should be stripped of their law license as it does not take a lawyer to understand the applicable law, 50 ILCS 105.  It does however take knowledge of the law and we have seen many that had no clue this particular law even existed, yet they represent public officers.

50 ILCS 105 – Public Officer Prohibited Activities Act.

Sec. 1. County board. No member of a county board, during the term of office for which he or she is elected, may be appointed to, accept, or hold any office other than (i) chairman of the county board or member of the regional planning commission by appointment or election of the board of which he or she is a member, (ii) alderman of a city or member of the board of trustees of a village or incorporated town if the city, village, or incorporated town has fewer than 1,000 inhabitants and is located in a county having fewer than 50,000 inhabitants, or (iii) trustee of a forest preserve district created under Section 18.5 of the Conservation District Act, unless he or she first resigns from the office of county board member or unless the holding of another office is authorized by law. Any such prohibited appointment or election is void. This Section shall not preclude a member of the county board from being selected or from serving as a member of a County Extension Board as provided in Section 7 of the County Cooperative Extension Law, as a member of an Emergency Telephone System Board as provided in Section 15.4 of the Emergency Telephone System Act, or as appointed members of the board of review as provided in Section 6-30 of the Property Tax Code. Nothing in this Act shall be construed to prohibit an elected county official from holding elected office in another unit of local government so long as there is no contractual relationship between the county and the other unit of local government. This amendatory Act of 1995 is declarative of existing law and is not a new enactment.  (Source: P.A. 94-617, eff. 8-18-05.)

Anyone with half a brain can read that statute and understand that a county board member may not also hold another elected office in a unit of local government if there is a contractual relationship.  It appears the example presented in the Daily Herald article points to there being a contractual relationship, thus, they can’t hold both offices. How can an attorney not understand that?  Did taxpayers pay for that bad advice?

Now we turn to the situation that I suspect is a disgruntled attorney who just can’t keep his nose out of COD.  Why anyone would take up the time and resources of the State’s Attorney office on a matter that frankly is spelled out quite well in the law is beyond me.

50 ILCS 105 – Public Officer Prohibited Activities Act.

(50 ILCS 105/2) (from Ch. 102, par. 2)
    Sec. 2. No alderman of any city, or member of the board of trustees of any village, during the term of office for which he or she is elected, may accept, be appointed to, or hold any office by the appointment of the mayor or president of the board of trustees, unless the alderman or board member is granted a leave of absence from such office, or unless he or she first resigns from the office of alderman or member of the board of trustees, or unless the holding of another office is authorized by law. The alderman or board member may, however, serve as a volunteer fireman and receive compensation for that service. The alderman may also serve as a commissioner of the Beardstown Regional Flood Prevention District board. Any appointment in violation of this Section is void. Nothing in this Act shall be construed to prohibit an elected municipal official from holding elected office in another unit of local government as long as there is no contractual relationship between the municipality and the other unit of local government. This amendatory Act of 1995 is declarative of existing law and is not a new enactment.  (Source: P.A. 97-309, eff. 8-11-11.)

As I understand, there is no contractual relationship with Downers Grove and the College of DuPage.

If there is a contractual relationship between the two then the COD Appointment would be void as outlined in the above statute.

I emphasize the criteria of the voiding the appointment if there is a contract because many are of the belief that if there was a conflict there would be a constructive resignation from the previous position held.  There is precedence for that when there are conflicts however when the law specifically points to the new appointment being void they would still hold the previous position.

Orland Park Public Library is another example of attorneys giving bad advice.  In that case, it cost taxpayers hundreds of thousands of dollars in legal fees for taking the bad advice regarding the Open Meetings Act and Freedom of Information Act and another $55,000.00 settlement to the citizen who proved the attorney wrong!  Coverage of that was in this article.

We see time and time again, attorneys give advice that is in direct conflict with the law yet they continue to get paid. The former COD attorneys  are perfect examples of this problem and their fialure is what cost the taxpayers so much money, not the actions of the reformers trying to fix what happened at COD.

The pattern being created is one of billable hours being the important matter, not following the law or case law on certain matters and protecting the interests of the public body, which is owned by the taxpayers.  It appears they would rather have matters escalate to the point of litigation as that is where they make their money.

DuPage County Election Commission is another example.  Although we have not yet written the story, we sued them over FOIA violations.  Only after filing suit were all the records provided, yet the judge sided with the public body since we got the records and they would not award attorney fees.  Of interest in this case is the fact the settlement offer we made after getting the records appears to have never been shared with the board.  Instead, they fought that case and spent upwards of $10,000.00 fighting us instead of settling for less than $3K.  This example appears to be a case where appointed boards hire the attorney more for political reasons, and it ensures they too make money on the backs of the taxpayer.

Another example is the Lisle-Woodridge Fire Protection District who lost a multi-million dollar case over what appears to be a poorly written ordinance.  We understand Dan Cronin’s firm handled that Ordinance when it was passed, as legal counsel for the Fire Protection District. We will be sharing more on that in a dedicated article.

As we see it, unless Downers Grove has a contractual relationship with the College of DuPage, there does not appear to be any conflict of interest. I suspect if the State’s Attorney ever chimes in on the matter that will  be his response.  However, I don’t think we will hear from his office as this matter is not a County issue and his job does not include providing legal opinions for other public bodies.

My long standing suggestion to every public body is to ask their attorney to show them the statute that tells them they have the power to take whatever action they are wanting to take.  If they can’t show you the statute, you can’t do it.   If they tell you it’s ok to do it without the statute, find a new attorney.

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