DuPage County: Letter On Compensation of Elected Officials (Part 3) –

DuPage Co. (ECWd) –

The final article on DuPage State’s Attorney’s letter to the county board chairman regarding compensation of elected officials.

This one focuses on compensation of the State’s Attorney. Click here for Part 1 and Part 2.

The bottom line in the previous two articles as it is with this article, is that even if the car allowance, health insurance, dental insurance, life insurance, etc. are “authorized by state law” (keep in mind none of them are mandated by any law) – state law also requires the board to pass an ordinance setting the compensation of elected officials of the county. In passing the ordinance, they are telling the elected official and the public everything the elected official is authorized to receive. Anything received above what is in the ordinance is a violation of state law and county ordinance.

Compensation of State’s Attorney – starting on Page 14 of the letter (here):

We encourage you to read both pages 14 and 15, then read the Counties Code, Section 5-1001, and finally, read AG Opinion 93-007.

First and foremost, any compensation received by the State’s Attorney can only be what is listed in the most recent compensation setting ordinance for the State’s Attorney. Nothing more. It is difficult to think that there are people who do not believe $41,000 + per year worth of health insurance and vehicle allowances are not compensation,  but then again those are the people receiving the compensation in the first place.

The AG Burris’ Opinion clearly indicates that “the county board does not possess the authority to increase the State’s Attorney’s salary to an amount which is greater than that fixed by law” (page 2) – and again on pages 7 and 8 which goes even further requiring “express statutory provision authorizing such payment“.

Definition of “Express Provision”: The intent is to prevent a party from inferring an exception to the general rule that is not explicitly carved out. It requires that any exception to the rule be clearly stated and explained so that there is no dispute as to whether the rule (or an exception to it) applies to particular facts or circumstances. (defined here)

Even if, for the sake of argument, that all the additional compensation is expressly authorized in statute, which we don’t think it is, that compensation must be included in the county board ordinance setting the compensation – especially since all of it is optional and not mandatory (compared to social security payments, etc.).

The Illinois Constitution, Article VI, Section 19 [State’s Attorneys] states in part that: “…His salary shall be provided by law.”

[documentcloud url=”https://www.documentcloud.org/documents/2940529-DuPage-SA-Opinion-Compensation/annotations/309747.html”]

In the above paragraph from page 14 of the letter, it implies that even though Counties Code, Division 4-2 provides the provisions for SA compensation, that the “now abolished Compensation Review Board” must determine the SA’s salary – and that the same section provides that it doesn’t prevent the payment of additional compensation to the SA out of the treasury of the county as may be provided by law.

• Whether or not the Compensation Review Board has been abolished is of no consequence in determining SA compensation, because Division 4-2 sets the salaries at a certain amount based on population and date and . . . [whichever is greater]
  • thereafter or as set by the Compensation Review Board, whichever is greater. The State shall furnish 100% of the increases taking effect after December 31, 1988.
• The Section talking about payment out of the treasury of the county only applies to those portions of the SA salary not paid by the state (see the text from the above section where the state furnishes 100% of the increases in compensation taking effect after Dec. 31, 1988) – it only makes common sense that the county pay the remainder out of its treasury – this paragraph immediately follows and is in the same subparagraph (f) where the statutory salaries are set:
  • <span style="font-family: Courier New; font-size: small;"><span class="Apple-converted-space">Such salaries shall be paid to the state's attorney and the assistant state's attorney in equal monthly installments by such county out of the county treasury provided that, subject to appropriation, the Department of Revenue shall reimburse each county monthly, out of the Personal Property Tax Replacement Fund or the General Revenue Fund, the amount of such salary. This Section shall not prevent the payment of such additional compensation to the state's attorney or assistant state's attorney of any county, out of the treasury of that county as may be provided by law.<code><span style="font-family: Courier New; font-size: small;"><span class="Apple-converted-space"> </span></span>
• “As provided by law” is a statement used several times in this letter. It means as set forth in law or as specified in the law – we believe the law, the counties code, plays a major role here.
• The Compensation Review Act, which the Compensation Review Board operate(d) under prohibited Cost of Living Allowances for FY16 – which incidentally also defines salary or compensation – as synonymous. Since the Board was abolished, one must look back to the Counties Code in determining the compensation of the SA and apply the “whichever is greater” statement contained within the counties code when determining their compensation.

Even if we buy into the notion that a State’s Attorney can receive the Health Insurance provision in the Counties Code, and in the Illinois Municipal Retirement Fund – both of which “authorize” but do not “require” elected officials, including State’s Attorneys, to participate, the only legal way for the county to authorize their participation is by including those items in the ordinance setting their compensation. That is what is required by the counties code and that is what must happen (as provided by law).

Vehicle Allowance:

As stated in Part 2, the most recent resolution authorizing a vehicle allowance does not specifically or expressly authorize one for the State’s Attorney, and even if it did, it would be invalid as a resolution/ordinance by a local government is not “law”, and resolutions/ordinances cannot be used to replace the requirement that it “be provided by law”. The difference being, in the case of the State’s Attorney, is that this vehicle allowance is compensatory as stated in the resolution (even though it did not specifically authorize the allowance for the SA) and there is no law which authorizes it. If applied using the arguments in this letter that the county must “provide for the use of ” is a statement intended for the “Office of the State’s Attorney” and therefore must be paid to the Office of the State’s Attorney and not the individual holding the office, and should probably been included within the budget for the office. There is a difference, for example, providing a county vehicle to use, is much different than providing $450 per month for a vehicle allowance, simply because that county vehicle can only be used for public business, not  so much so with the monetary allowance.

Request Written Opinion from the Attorney General:

The State’s Attorney stated he would request an opinion from the Attorney General if asked, and we have previously asked DuPage County Chairman Dan Cronin to seek such an opinion. We are asking again that DuPage County seek an opinion from the AG which includes at a minimum the following questions:

1. Are “compensation” and “salary” synonymous in relation to the counties code mandate that the county “set the compensation” of county board members in accordance with the method of compensation selected?
2. Are “compensation” and “salary” synonymous in relation to other elected officials (State’s Attorney, Sheriff, etc.) and their compensation as set by the county board?
3. Does ALL compensation have to be included in any ordinance setting compensation – or can they keep using a 16-year-old resolution granting compensatory vehicle allowances, even after passing new compensation setting ordinances?
4. Is Health, Dental, Vision, and Life Insurance considered compensation?
5. Is participation in IMRF considered compensation?
6. Is a vehicle allowance considered compensation?
7. Are the opt-out payment provisions of the county’s insurance programs considered compensation?
8. IF county elected officials are considered employees according to the counties code when discussing the authorization to provide for health insurance, are they bound by the county policy’s determination of the definition of which employees are eligible, [IE: must be “full time” (37.5 hours per week) employee in order to be eligible for county health insurance programs] absent any other provision in county policy specifically pertaining to elected officials and health insurance eligibility?
9. Implied repeal – Does the passing of a new compensation setting ordinance “imply the repeal” of previously passed compensation setting ordinances for the same office(s)? Does it repeal the previous ordinance setting compensation for the same offices? Must a new ordinance be passed prior to every election? If a new ordinance is not passed prior to an election, does the most recent previous ordinance stay in effect?
10. Can a county pay from its treasury any additional State’s Attorney compensation above the amount set by law or the compensation review board, whichever is greater? and if so, does that additional compensation have to be included in the compensation setting resolution?
11. May the county pass an ordinance, after-the-fact, to approve previous compensation received, but never included in any previous compensation setting ordinances, even if that compensation [insurance] violated the county policy on insurance eligibility?

Burris’ 1993 Opinion on State’s Attorney Compensation (here).

As with the previous two articles, we believe any and all compensation received by elected officials must be set in their compensation setting ordinances.

Hopefully we included everything in these three articles, if not, there will be another one.
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