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July 18, 2024

McHenry County -When they get it wrong at the top it goes downhill from there

By Kirk Allen & John Kraft

On September 7, 2017

McHenry Co. (ECWd) –

“We have always done it this way,” “Our attorney said it was OK,” “That’s how other counties do it.”

Those are the most common answers we get when we confront public bodies who are doing things outside their legal authority.  It turns out McHenry County is no different than many others counties, which tells me we have a serious education problem when it comes to these units of government.  Education as in, who is training them on the legal operation of their public body?

For years we have been dealing with one particular issue with county government, and it seems way too many people in the position of giving legal advice have been unwilling to research matters before green-lighting activity which is clearly in violation of law and inconsistent with both case law and numerous Attorney General opinions.

As it relates to McHenry County, we now find that the Emergency Telephone System Board’s illegal hiring of an attorney was green lighted by the Chief Civil division attorney Norman Vinton in the State’s Attorney’s office.  He happens to be the person in the video who County Chairman Franks told he “wants them (board members) charged” after the last special county board meeting, which we covered in this article.

Considering no such charges have come out of Franks’ tirade, we are going to assume this particular attorney is capable of discerning what is or is not a violation of the law.

With that in mind, let’s lay out some simple questions for this attorney to answer and then see if his response to the ETSB was appropriate and whether the county will fix this problem on their own.

  1. Is the Emergency Telephone System Board (ETSB) under County Control?
  2. If the answer to the first question is Yes, can they legally hire a private attorney to represent them?

The answer to number one is simple.  Yes!  One only need to read the Attorney General opinion we provided in our previous article to understand why the answer is yes.  For the sake of making things simple, these are highlights from the AG opinion.

  • Although it possesses certain powers which only the ETS Board may exercise, the Board is not an autonomous, independent unit of government.
  • A single county ETS Board is not denominated a body politic and corporate. Consequently, the entity could not sue or be sued in its own name.
  • The fiscal relationship between the ETS Board and the county is similar to that which exists between the county and other county agencies. For example, in Opinion No. 80-032, issued September 25, 1980 (1980 Ill. Att’y Gen. Op. 127), Attorney General Fahner determined that the Care and Treatment Board for Certain Mentally Deficient Persons (Ill. Rev. Stat. 1979, ch. 91 1/2, par. 201 fil;;. seq.) was an agency of the county.
  • Because the county board exercises authority over a single county ETS Board through its powers to create the Board, appoint its members, and control the level of its funding, it appears that the Board is an agency of the county.

As pointed out by the Attorney General, the ETSB can not sue or be sued, which means they answer to the one who created them, the county board.  So the answer to question number one is YES, the ETSB is under county government and is not an independent public agency.

Since they are, in fact, an entity under county government control, we find the answer to number two most interesting.  As found in the AG opinion specifically talking about ETSB:

Accordingly, as a county agency, it appears that it is the duty of the State’s Attorney to provide legal representation to an ETS Board which is established by the county.”

That indicates the ETSB may not hire private counsel.  Not convinced?

  • “this court applied earlier, substantively identical versions of these two statutes in determining that the county board lacked authority to employ private counsel to perform legal services for the County. – in County of Cook v. Bear Stearns & Co., Inc., 2005
  • “As a general rule, when a municipal corporation has legal counsel charged with a duty of conducting the legal business of a government agency, contracts with other attorneys for additional or extra legal services are void.” – in State v. Volkmer, 1994
  • As outlined in the AG opinion, the State’s Attorney is the attorney and legal advisor for the county. (Ashton v. County of Cook {1943), 384 Ill. 287, 299-300.)

That same opinion outlined such a duty is contingent upon whether an Emergency Telephone System Board is an office or agency of the county, which they are.  That brings us to well-settled law, the courts words, not ours.

“The law is well settled that when the Constitution or the laws of the State create an office, prescribe the duties of its incumbent and fix his compensation, no other person or board, except by action of the legislature, has the authority to contract with private individuals to expend public funds for the purpose of performing the duties which were imposed upon such officer. (Fergus v. Russel, 270 Ill. 304; Stevens v. Henry County, 218 Ill. 468; Hope v. City of Alton, 214 Ill. 102.) The contracts of employment under which appellants claim were ultra virus and void.”

So it appears to be crystal clear, the McHenry County attorney who permitted the ETSB to hire a private attorney has made a big mistake.  All such funds are recoverable and all future spending of taxpayer funds for private attorneys to represent ETSB must stop.

The sad part in this case, the attorney they hired was the same one who billed thousands of dollars in Iroquois County for his legal advice to their ETSB.  His representation stopped in that county when we exposed it in numerous articles found at this link.

We ask the people of McHenry County to demand the elected office of State’s Attorney perform their statutory duty and provide a proper legal representation of all parts of the County, which includes the ETSB.

If you’re looking for an indicator that local government is taking too much of your money, this is a perfect example. If they have funds to hire private attorneys, then they are taking to much of your money as their legal counsel is already paid for, just not being provided as required by law.

The big question now, will they fix this on their own or must we continue to press the issue?


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1 Comment
  • Working toward better days
    Posted at 06:02h, 09 September Reply

    This is the product of decades of unchecked political power in this state. Thank goodness for folks like ECWD who don’t have ties to local politicians and really can’t be bullied by them either. I hope we can look forward to your continued involvement in this issue.

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