FOSTERBURG, IL. (ECWd) -
In our continuing coverage of the complete mess about to be constructed by the City of Carlinville, Fosterburg Water District, and a private corporation, Jersey County Rural Water Company, we have found some interesting new concepts in play in the Fosterburg Water District ("FWD").
In their quest to continue with a regional water concept, the FWD appointed a (now-former) water commissioner, Steve Rupert, to the alleged board to look at options - Carlinville also appointed an alderman as its member on this "board." The FWD Commissioner was appointed to the FWD board by the Madison County Board and replaced when his term expired.
Steve Rupert, appointed by FWD has since been replaced by another person on the FWD Board when his appointment expired, but the majority has left him on this alleged regional water board. So now the FWD residents are left with an unaccountable person making determinations that will affect their water bills, health, and property values for at least the next 4 decades.
We believe the FWD Commissioners have given away their statutory powers, without the authority to give those powers away, and without the authority to even form the nonprofit, to begin with. At the very least, they should remove this person from the alleged regional non-profit appointment and replace him with an FWD Commissioner - we believe they should abandon this private nonprofit corporation idea all together as we find no statutory authority for them to do what they are doing.
Does a Water District have authority to establish a Non-Profit?
The short answer is NO, but we will explain it below.
For any local government in Illinois to do anything, it must first have been granted authority by the legislature. This authority derives from the Illinois Constitution and the Illinois Compiled Statutes. This is known as Dillon's Rule, named after Iowa Supreme Court Justice John Forrest Dillon.
Essentially, Dillon's Rule states that governments only have the express powers given to them in the statutes, no matter how much it is wanted or needed, if there is no statutory authority granted to perform the act, it cannot be performed. If there is any reasonable doubt as to whether a government can perform a function, it cannot perform it (the government does not receive the benefit of the doubt). The government has all powers indispensable to those granted in the statute. Do not confuse this as looking for a statute prohibiting an action - instead, you must look for a statute enabling the action.
What powers does a Water District have?
- appoint an attorney, engineer, general manager, etc
- participate in IMRF
- a referendum for real estate tax
- Billing for services (70 ILCS 3705/7.4)
- use eminent domain
- use public rights-of-way
- supply water to others under certain conditions (70 ILCS 3705/10)
- contract for a supply of water for no more than 40 years (70 ILCS 3705/11)
- acquire by purchase or condemnation waterworks properties
- acquire waterworks properties under section 41 (70 ILCS 3705/41)
What powers does a Water District NOT have?
- Among many others, a Water District was never given the power to create or participate in the creation of a non-profit water corporation in order to contract for water. Therefore, it does not possess the power.
The Fosterburg Water District, or any water district in Illinois, does not possess the powers to create a non-profit or to participate in the creation of a non-profit in order to contract for water from it.
Contracting for water does not equal setting up a corporation for the purposes of contracting for water.
What should Fosterburg Water District and Carlinville do, if they must do anything?
- Participate in Water Commission (which is a public body)
- Use Intergovernmental Agreements to form a Water "Consortium" (which would be a public body)
- Dissolve the district and sell it to a corporation
What are the real issues with forming this nonprofit?
- No accountability to residents
- No accountability in contracting
- No accountability in hiring
- No accountability in use of public funds
- No way for residents of Fosterburg Water District or City of Carlinville to maintain control
- No statutory requirements for Open Meetings
- Limited statutory requirements under Freedom of Information Act
- No control over water rates