Iroquois Co. (ECWd) -
We obtained an employment contract and related documents tied to an employment issue in Iroquois County for a position they refer to as “911 Coordinator.” Please take special note of the fact no such position can be found in any statute in Illinois. We contend the contract related to this particular employment position is invalid for several reasons of which some are very simple to understand and others a little more complex. In order to fully represent the facts, in this case, this will be a three part article.
Dillon's Rule. It is the bedrock of interpreting our laws and if there is a question of whether or not a local government has a certain power. This is commonly referred to as statutory construction.
Dillon's Rule construes grants of power to localities very narrowly. The bottom law is -- if there is a question about a local government's power or authority, then the local government does NOT receive the benefit of the doubt. Under Dillon's Rule, one must assume the local government does NOT have the power in question.
In legal language, the first part of Dillon's Rule reads like this: Local Governments have only three types of powers: 1.) Those granted in express words; 2.) Those necessarily or fairly implied in or incident to the powers expressly granted; and 3.) Those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable.
It is the second part of the Dillon Rule, however, that puts the vise on local government's powers. This part states that if there is any reasonable doubt whether a power has been conferred on a local government, then the power has NOT been conferred. This is known as the rule of local government powers. (Dillons Rule)
According to past contract validity matters in Iroquois County, Jim Devine, the County States Attorney, correctly stated during a County Board meeting that a contract in place that was never on the agenda is invalid. He was referring to a contract issue with ICOM and the County. It would be invalid because it was never properly noticed to the public. Proper notice obligation is clear in the Open Meetings act.
Section 2.02C clearly states, “Any agenda required under this Section shall set forth the general subject matter of any resolution or ordinance that will be the subject of final action at the meeting.”
Devine is also on record stating; "He explained that the agenda used by the County Board must show specifically, any action or discussion that is expected to take place at their meetings. The prior agenda was too vague and did not show action, which is a violation of the Illinois Open Meetings Act."
Applying his own standard, the Emergency Telephone System Board (ETSB) agenda fails even the most basic legal scrutiny as it relates to any action on a contract.
One need only read this agenda to see, there is no general subject matter of any resolution or ordinance that will be the subject of final action at the meeting as it relates to contracts. Nor does this agenda meet the very requirements pointed out by the Iroquois County State's Attorney Jim Devine.
Anyone who attempts to imply listing “contracts” on the agenda under a Committee Reports heading is sufficient would be well advised to read Allen v. Clark County Park District, a case we won in the Appellate Court recently as it related to agenda items and their sufficiency. This is now case law in Illinois.
Reading the minutes from the meeting in question, it is clear they attempted to take action under the item VIII Committee Reports section F item. How is it that a committee has authority to take action under an agenda item pointing to reports? Or was this a slick attempt to provide a contract for an employee without raising any attention to what was happening?
Regardless, the minutes do not reflect anything more than a motion being made. There is no second to the motion nor any annotation that the motion passed and if so by what vote count.
Loy made a motion to accept the employment agreement for Nita Dubble with the additions and corrections on the agreed initialed copy signed by the ETSB and Dubble.
Any attempt to imply there was a proper vote and claim it was just not recorded properly, proves they voted on a matter not properly listed on an agenda, thus such action is voidable by the courts or the ETSB can simply declare it void ab initio. In addition, committees providing committee reports do not have the power to enter into or vote for a contract, which is the only place the word contract appears on the agenda. This agenda was the very one provided by Nita Dubble when I asked for the agenda for the meeting in which the contract was claimed to have been approved.
Where in the statute for ETSB does it give them the power to hire a 911 Coordinator?
It does not!
In fact, the very duties of planning the 911 system, Coordinating and Supervising the implementation, upgrading, or maintenance of the system, including the establishment of equipment specifications and coding systems is a duty of the ETSB, not a hired employee of that board.
The statute is VERY clear and assigns specific powers. As it relates to employees, it only authorizes the hiring any staff necessary for the implementation and upgrade of the system.
This is very important to understand because what we really have here is a neglect of duty by the ETS Board as it relates to what they are supposed to be doing. The statute assigned the board members the powers and duties of Coordinating and Supervising the system. It did not give them the power to delegate their duties to someone else through a contract. This is no different than a States Attorney who represents the county. Those powers are vested in that position and they cannot be delegated to others without statutory direction. In the case of the States attorney, they can have a special prosecutor appointed by statute, thus another person performing his duties. There is no such authority for the ETS Board to delegate their statutory duties to anyone else. They are appointed by law and it is their duty to perform the duties assigned to them by ordinance and law.
This "Coordinator" title and position typically come from the initial legal hiring of staff to implement the original system and those involved worked themselves into a full-time job by doing what the Board is statutorily directed to do.
As it relates to hiring staff, it does not give them the power to enter into an employment contract. Had the legislature intended for them to have that power they would have outlined that authority in the statute, just as they have in numerous other statutes. A few examples are found below.
County Health Department Contract power provided for Public Health Administrator - 55 ILCS 5/5-25013 (B)7. Enter into multiple year employment contracts with the medical health officer or public health administrator as may be necessary for the recruitment and retention of personnel and the proper functioning of the health department.
School Code Contracting power provided for Superintendents - 105 ILCS 5/10-23.8- Superintendent contracts. After the effective date of this amendatory Act of 1997 and the expiration of contracts in effect on the effective date of this amendatory Act, school districts may only employ a superintendent under either a contract for a period not exceeding one year or a performance-based contract for a period not exceeding 5 years.
Park District Code Power to Contract Director. - 70 ILCS 1205/8-1 (i) To make contracts for a term exceeding one year, but not to exceed 3 years, notwithstanding any provision of this Code to the contrary, relating to: (1) the employment of a park director, superintendent, administrator, engineer, health officer, land planner, finance director, attorney, police chief, or other officer who requires technical training or knowledge;
Employment power tied to a term
Highway Code – (605 ILCS 5/5-202)(a) Except as provided under subsection (b) of this Section the term of office of each county superintendent of highways is 6 years and until his successor is appointed and qualified.
Water District - 70 ILCS 3705/ Sec. 7. The board of trustees may appoint a general manager to serve a term of five years and until his successor is appointed, and his compensation shall be fixed by resolution of the board.
You will not find ANY statutory authority for the ETSB to enter into employment contracts. Had the legislature wanted the ETSB to have the power to enter into employment contracts delegating their duties to an employee it would have reflected such authority in the statutes like they have in many other statutes pertaining to public agencies in this state.
If the ETSB can’t point to statutory authority to enter into an employment contract with a person then they don’t have the power to do it. Dillon’s Rule is the law in Illinois and if you doubt that, listen to the 21:44 mark of the audio from this Appellate Court hearing where the Justice on that court explained Dillions rule quite well.
Below is my brief presentation to the ETSB at their last meeting on this specific matter. We encourage them to ask the key question, where in the statute does it give them the power to enter into contracts for a position of 911 Coordinator? Such a position is nothing more than a created title by people trying to secure their own job.