McHenry Co. (ECWd) -
As shared in this previous article, the Algonquin Township Clerk Karen Lukasik is of the opinion the Township Board can't hold a meeting without her present, in essance giving her the power to hold the board hostage to her schedule.
The previous article laid out clearly why that is not the case but we wanted to expand even further why she is wrong in her assertions.
What happens when a Township Clerk fails to qualify, or a vacancy in the office of Township Clerk occurs for any other reason including without limitation the resignation or the conviction in any court of the State of Illinois or of the United States of an officer (clerk) for an infamous crime?
Clearly the legislature thought out what to do when a vacancy takes place and if it's the Clerk, using the logic of Lukasik, all business would stop because there is no Clerk present. Again, that could not be further from the law.
(60 ILCS 1/60-5)
Sec. 60-5. Filling vacancies in township offices.
(a) Except for the office of township or multi-township assessor, if a township fails to elect the number of township officers that the township is entitled to by law, or a person elected to any township office fails to qualify, or a vacancy in any township office occurs for any other reason including without limitation the resignation of an officer or the conviction in any court of the State of Illinois or of the United States of an officer for an infamous crime, then the township board shall fill the vacancy by appointment, by warrant under their signatures and seals, and the persons so appointed shall hold their respective offices for the remainder of the unexpired terms.
Considering the legislature recognized vacancies happen, it is clear the board has the power to hold a meeting when a vacancy occurs. Although in the current case of Algonquin Township there is no vacancy of the Clerk position, if it was vacant the law provides the power for the board to continue to conduct business.
Using statutory construction as the guide, we find no language that mandates the Clerk to attend every township meeting. The only mandated attendance language connected to the Clerk is found in those obligations of the Deputy Clerk and it clearly states: "Attend township meetings and township board meetings and take minutes of those meetings"
We find it rather interesting to see the only mention of who is to take minutes in the entire Township Code is found in the Deputy Clerk section of the law, and it mandates those matters to the Deputy Clerk, not the Clerk. Had the legislature wanted meeting attendance and taking of minutes to be a mandatory duty of the Clerk, they would have said so in the law. The fact it is silent on that matter speaks for itself.
We always ask two key questions in situations like this: Says Who and With What Proof?
The obligation to take minutes falls on the Public Body according to the Open Meetings act and in this case, that is the Board as outlined in the Township Code. As an update and clarification of the previous article, there is only one situation where the Clerk would be counted as a member of the board for the purpose of Open Meetings Act and that would be when the Clerk has a vote in the event of a tie while filling a vacancy. Outside of that, the Clerk is not counted towards a quorum, thus not part of the Public Body as it applies to OMA.
Now with all the legal positions laid out, how long before this Clerk will take the position she is not going to take minutes because the law does not require her to?
The confusion comes with understanding how to read statutes and apply what it says accordingly.
(60 ILCS 1/80-45)
Sec. 80-45. Township clerk as clerk of board. The township clerk shall act as clerk of the township board and shall record the proceedings of each meeting of the board in a book which he or she shall provide for that purpose at the expense of the township. The record shall include all certificates of accounts audited by the board.
It is common for the clerk to take the minutes as that is how it's been done for years but the law, as it applies to the clerk, is more detailed. The clerk is the custodian of all records. Those records are referred to as books, in which she is required to provide. The above statute, 80-45, outlines she is to record the proceedings of each meeting of the board in a book. That is not the same as attending each meeting and taking minutes. The Board can take minutes, then provide them to the clerk who then must exercise her duty under the law, which is to record the proceedings of the board in a book she provides for that purpose. The same would be the case if there is an appointed Deputy Clerk. The Deputy would take the minutes, then provide them to the clerk to record those proceedings in a book for that purpose.
Considering the Township Clerk is also the ex-officio clerk for the Highway Commissioner, are to believe, using her logic, that the Highway Commissioner can not perform his job without her presence as well?
(605 ILCS 5/6-113) (from Ch. 121, par. 6-113)
Sec. 6-113. In each road district comprised of a single township, the township clerk shall be ex-officio the clerk for the highway commissioner.
Although we understand traditionaly the Clerk is the one taking the minutes in most Townships, a deep dive into the law shines light on the fact the only one tasked with that obligation is the Public Body under the Open Meetings Act, and the Deputy Clerk if so appointed under the Township Code.
Clearly as outlined in the previous article, and this one, the Clerk does not have to be present for the Township Board or the Township Electors to hold a meeting. We welcome any fact-based evidence to contradict our opinion as provided.