Downers Grove Commissioner wants legal opinion on College of DuPage Trustee appointment.

DuPage Co. (ECWd) –

As a follow-up to this article pertaining to the request for a legal opinion from the DuPage County State’s Attorney regarding a perceived conflict of interest with David Olsen, Downers Grove Mayor Pro-tem and his position as a College of DuPage Trustee.  We once again will provide our perception on the matter based on information contained in the records Commissioner Barnett provided to the State’s Attorney.

Turns out Downers Grove Commissioner Bob Barnett sent this e-mail to the DuPage County State’s Attorney.  Attached to his email was an opinion written by the Attorney General Attorney in 1985 and a Q&A document on conflicts from the Illinois Municipal League.

It appears Mr. Barnett is of the opinion the term “School Board” would include the Board of Trustees of a “Community College”.  However, when you read the opinion provided from the Attorney General in 1985, they specifically reference Revised Statute 1983 chapter 122, paragraph 10-20.3.  Using this link, you can look up that old statute referenced and see that it now is 105 ILCS 5/10-20.3, which is the School Code, not the Community College Act.

The term Board of Education is specific to the School Code, where the Community College Act uses the term “Board” and defines that as “The Board of Trustees of a Community College District”, whether elected or appointed.”

In addition, the opinion points to the new statute 30 ILCS 115/3 which states

(30 ILCS 115/3) (from Ch. 85, par. 613)

    Sec. 3. Use of Fund. The amounts allocated and paid to the municipalities and counties of this State pursuant to the provisions of this Act shall be used solely for the general welfare of the people of the State of Illinois, including financial assistance to school districts, any part of which lie within the municipality or county, through unrestricted block grants for school purposes carried out within the municipality or county making the grant, and also including, but not limited to, mental health programs, wastewater projects, road and bridge construction and repair and social service programs.(Source: P.A. 86-18.)

The term “School Districts” is specific to the 105 ILCS statute known as the School Code.  The Community College Act specifically refers to “Community College District”.  That indicates the revenue code pointing to the financial support of those schools under the 105 ICLS statute and not the Community College Act.  Reading the Community College Act makes it clear there is a distinction between the two terms.  We have also confirmed with the legislature that the revenue-sharing statute applies to school districts, not community college districts.

In addition, a paragraph in the Q&A response from the Illinois Municipal League actually provides the needed information to confirm there is not conflict.

“In conclusion, when statutory or Constitutional authority do not exist, an incompatibility of office arises when the duties of each office are such that the holder of one cannot, in every instance, fully and faithfully discharge all the duties of the other. Once an incompatible office is accepted, the first office or position is automatically relinquished. An incompatibility of office can be determined by examining whether the vested interests of one office directly or indirectly effects the vested interests of the other office. If one office is subordinate to the other, an incompatibility exists. Therefore, all elected or appointed municipal officials should carefully examine any other elected or appointed office, and consult with the municipal attorney, to ensure an incompatibility does not exist, or an official may find him or herself resigning an office without realizing it.”

As we pointed out in the previous article on this matter, as found in 50 ILCS 105 – Public Officer Prohibited Activities Act, “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. “

We are confident that if an opinion is presented it will more than likely come from the Attorney General as the DuPage County State’s Attorney is not there to give a legal opinion on matters that have nothing to do with the County, which he is legal counsel for.  He can use his office to get an opinion from the Attorney General and we suspect if he does anything that will be what he does.  The reason I raise this point is  because if the State’s Attorney does chime in and give an opinion for this Village Councilman, you will see a flurry of Councilmen wanting to basically get free legal advice and rest assured, municipal attorneys who get paid won’t let that go on for long.

Still of interest, is we have yet to find any contractual relationship with the College of DuPage and the Village of Downers Grove, nor to date has anyone identified anything that would indicate there is a conflict with Mr. Olsen serving in those two positions.

We are curious if Mr. Barnett asked his own legal counsel for the Village about this matter. At the time of publication we have not received a response from him.  We will update if we do get a response.

[gview file=”https://edgarcountywatchdogs.com/wp-content/uploads/2016/03/Request-for-opinion.pdf”]

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