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July 24, 2024

As 2017 ends, Carlinville’s problems continue: FOIA lawsuits, OMA violations, forming private companies to contract with…

By John Kraft & Kirk Allen

On December 29, 2017


With 2017 nearing an end, we find the City of Carlinville still embroiled in self-induced battles brought on by their failures to follow the law. Sometimes even going out of their way to thwart the meaning of the law to do whatever they please. We predict it will all backfire on them in the coming year.

  1. Carlinville is still fighting four separate lawsuits alleging violations of the Freedom of Information Act. Requesters sought things like credit card statements, training certificates, meeting minutes, etc… Carlinville thought they could refuse to provide the requested public records. We urge Carlinville taxpayers to thank their city council for spending your tax dollars in court when all they had to do was comply with the law.
  2. Carlinville pinged by the Attorney General’s Office for violating the Open Meetings Act at the new water company concept meeting, which has now sent a Notice of Criminal Trespass to the city council threatening arrest if city council members attend any more of “their” meeting. What a better way to say they aren’t trying to hide anything, than prohibiting city council members from attending meetings of a water company (one in which we are of the opinion has no authority to operate). Nice way to be open and transparent “Illinois Alluvial Regional Water Company” (for now) – which is, of course, the purpose of Carlinville going this route: to keep the public in the dark.
  3. Forming a private water company in order to contract for water from the private water company – we will discuss this in two parts:
    1. Illinois Constitution, Article VII, Section 10
    2. Several Appellate and Supreme Court cases


First, the City of Carlinville has never directed its legal team to render a written opinion on the legality of Carlinville participating in the formation of a private corporation in order to contract for water from the private corporation it owns.

IARWC (the private water company) had their attorney write a letter [Notice of Criminal Trespass], which purports to explain all the ways it is OK for Carlinville to participate in this manner, we will attack most of the points made in his letter:

IARWC thinks this Section authorized municipalities to form a non-profit, and even alleges later in the letter this Section effectively does away with Dillon’s Rule [he cites a case from 1929]. We disagree and can point to a Supreme Court case as evidence on why Dillon’s Rule is still in effect. Dillon’s Rule is a long-standing rule, in its most basic form, that says a local government only has those powers granted to it by the Legislature and the inherent. indispensable powers to pursue those powers granted.

If one were to believe Section 10 nullifies Dillon’s Rule, one could also say it nullifies Sections 5, 6, 7 and 8 – which talk about powers given to Townships, Home Rule municipalities and counties, counties and municipalities other than Home Rule units, and governments other than counties and municipalities. If Section 10 gets rid of Dillon’s Rule, then the other mentioned sections no longer need to be there.

Dillon’s Rule is upheld, even when reading Article VII Section 10, in a case from 1982 entitled Board of Education v. Cahokia District Council No. 58. In this case, the Court stated there are limits under Sec. 10 by defining the term “prohibited by law” – which it defined as, in this case, a school district is given certain express and implied powers under the school code – any attempt to alienate those powers by contracting them away would dilute the effect of the Code and would be “prohibited by law” — Applying this to the Carlinville situation with forming a private water company: a municipality is given certain express powers and implied powers under the Illinois Municipal Code and the Water Commission Act, any attempt to alienate those granted powers would dilute the effect of both Statutes and should be considered prohibited by law.

“Associate With” vs. “Form a Corporation”

Trying to confuse the term “Associate” and “Association” doesn’t work either. To “associate” does not mean “form an association/corporation” any reading of it to have the same meaning would bastardize the plain language of the Constitution. Governments can associate with corporations also, but that doesn’t mean it can open up a for-profit (or a non-profit) for the purposes of associating with a corporation. Completely ridiculous. “Governments can associate with associations” is not equal to “government may create a private company to associate and contract with.”

Other Court Cases Mentioned

Other court cases mentioned do not apply to this situation, and we have already written about most of them.

This IARWC is a creature of two governmental bodies and a private corporation, to form another private corporation – none of the court cases cited by the writer of the letter involve an agreement between governments and private corporations.

  • The Village of Elmwood Park v Forest Preserve of Cook County was a case where one public body was trying to force another public body to enter into an intergovernmental agreement. Clearly not applicable to this Carlinville situation.
  • Village of Sherman v. Village of Williamsville was a case about whether or not a contract signed, while a member of a Water Commission (a public body) could be canceled by one of the public bodies where were a member of the commission. Clearly not even in the same ballpark as this Carlinville situation.
  • Rockford Newspapers v. Northern Illinois Council on Alcoholism and Drug Addiction were about a non-profit whose member HAD NO TIES to any government body, by rather was simply a contractor with a state agency. Another case clearly not applicable to this Carlinville situation.
  • Connelly v. County of Clark was case that simply gave the County the authority to operate a gravel pit (which was already statutorily authorized) and to sell gravel to other local governments (under Article VII Section 10) – there was never even a mention of selling to or forming a private corporation. Again, not applicable to this Carlinville situation.

Nothing he cited involved a private corporation consisting of a majority of members (and owners) as government bodies. Therein lies the difference. there was a reason the first attorney strongly discouraged Carlinville from following this path – instead of taking his advice, they found an attorney who would agree with them. We believe he is wrong in his interpretations of Article VII Section 10 of the Constitution and of applicable statutes pertaining to this current situation.

We still believe, and we are not attorneys (but we do know how to read), that there exists no power for Carlinville, or any other public body, to form a private corporation with another private corporation, for the purposes of contracting with it for a supply of water.

Foreman & Kessler Letter

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  • Socrates
    Posted at 20:08h, 02 January Reply

    Let me get this straight. The Watchdogs may attend a meeting of Alluvial, Inc., but Carlinville Aldermen may not? Curiouser and curiouser!

    • jmkraft
      Posted at 20:10h, 02 January Reply

      I would say that letter was to tell everyone to stay away. I don’t think they will even tell anyone when their meetings are anymore.

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