DuPage Public Guardian / County Board Member Seeks AG Opinion –

DuPage CO., IL. (ECWd) –

DuPage County Board Member and DuPage County Public Guardian, Donald Puchalski, has asked the Illinois Attorney General for an opinion on whether or not he is prohibited from holding both offices. The letter is below.

In the letter, he points to the Public Officers Prohibited Activities Act (POPAA), which is the correct law to use. However, he also points to the original “act to prevent corrupt practices”, which ostensibly stated that county board members were prohibited from using their office to obtain additional public offices appointed by the county board – this act is no longer valid.

It appears Puchalski is trying to apply the words from the previous “Corrupt Practices Act” (“CPA”) to his holding of two public offices under the “Public Officers Prohibited Activities Act” (“POPAA”) – wanting us to forget the legislature enacted POPAA to replace the CPA, rendering the CPA invalid.

Puchalski states that since the previous law did not prohibit his dual public offices, then the new law shouldn’t either (disregard what the actual law says, twist it to your own liking). We believe he is mistaken and chooses to ignore Dillon’s Rule, which in its elementary form means that he must look for an enabling statute – a law that allows it – not for a law that prevents it.

In this case, the POPAA is the enabling statute, and it specifically prohibits a county board member from holding any office other than the chairman of the county board or member of a regional planning commission by appointment or election of the board of which he or she is a member. Section 1. This Section applies to appointments by the county board.

The key language on these prohibitions in Section 1 of the POPAA is: “Unless he or she first resigns from office of county board member or unless the holding of another office is authorized by law” – that sounds like the legislature pointing to Dillon’s Rule. The holding of public guardian / public administrator by a county board member is not “authorized by law” in any law we have been able to find.

Other Sections specifically “authorize by law” a member of a county board to serve in different capacities, such as, township highway commissioner under certain circumstances (Section 1.1), and certain education offices (Section 1.2) – neither are by appointment of the county board, which clearly shows the legislative intent of the act.

So, we have the prohibitions and the enabling sections all within the Public Officers Prohibited Activities Act. There are also certain Attorney General Opinions on other simultaneous service, and the Public Officer Simultaneous Tenure Act which is the enabling act to “authorize by law” county board members to also serve as township supervisor and township trustee in certain counties based on population (clearly not an appointment by the county board).

Additionally, legislation specific to a public body may also “authorize by law” county board members to be members of other public bodies, such as the Emergency Telephone System Act (“ETSB”), Section 15.4(a), which authorizes county board member(s) to serve on the ETS Board.

Section 5/13-1, 5/13-1.2, and 5/13-3.1 [of the Probate Act] talk about the public guardian / public administrator, but fail to enable what is already prohibited in the POPAA. See ETSB, above, for specific enabling language.

We can only wonder why he is unable to understand the law that is so clear, even to Southern Illinois Hayseeds.

[gview file=”https://edgarcountywatchdogs.com/wp-content/uploads/2016/10/PublicGuardian.pdf”]

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