Algonquin Township – Case law says Clerk cannot contract a person to perform her duty!

McHenry Co. (ECWd) –

Once again, information being discussed during the recent Algonquin Township meeting raises more concerns over the direction this group is going and the legal advice they are receiving.  After watching this meeting, it’s no wonder we are seeing so many legal problems in this township.

It appears a board member wanted a discussion on the issue of the Clerk contracting with an independent contractor to assist in the performance of her duties, an action we contend is not permitted by law. That discussion begins at the 1:08:57  mark of the video.

In our initial coverage, we made some statements of fact regarding what we allege is an illegal contract and our first point is now confirmed by the Attorney for Algonquin Township.  We stated in that first article: “The law does not permit the Township Clerk to sign contracts for services.”

We are pleased to now see the Township Attorney confirming what we said.

The Clerk has no authority to sign a contract.  At the 1:11:12 mark of the meeting video the Attorney goes to great length to point out no elected official has specific authority to sign a contract.  This will turn out to be a big mistake on his part.  We believe he was condescending with his presentation as he focused on a keyword to make his point all while ignoring the real issue, contracting.  He focused on the word “sign”, as in to sign a contract. He is correct in the fact there is no statutory language that points to the word “sign”, a contract, but there is plenty that points to contracting. A fact he conveniently ignored as it would have destroyed is opinion.

This is where it gets fun! 

The attorney attempted to apply a prong from Dillon’s Rule as it relates to the Clerk contracting a person to help out in the office.

• 1.) Those granted in express words;

As confirmed by the attorney, there are no express words granting the Clerk to sign a contract, just as we said in our first article.  We also contend she cannot enter into a contract as that authority was never expressly given as it was with other Township elected offices.   

• 2.) Those necessarily or fairly implied in or incident to the powers expressly granted;

This is the prong the attorney attempted to imply giving the Clerk the power to sign a contract.  We will explain below why that is not true.

• 3.) Those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable.

The contracting of this person was not essential to the declared objects and purpose of the corporation [Township], nor was this an indispensable need. 

The proper application of statutory construction and Dillon’s rule is 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.

At the 1:11:40 mark of the video, the attorney attempts to justify why the Clerk can contract a person to work in her office and states: “The authority for the Clerk to enter into a contract is based upon, essentially, her ability to, uh, reasonably to enter into a contract to a duty that she has and it’s limited in this case by her budget.”

WRONG! 

An elected official can not contract their duties to another person.  The case law on this point is tremendous and this attorney missed the boat on this one.

“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 ultravires and void.” https://www.courtlistener.com/opinion/3419861/ashton-v-county-of-cook/

She is an elected official.  She has a duty to perform those duties described by law. The taxpayers should not have to pay two people to perform the elected duties of the Clerk. The Township attorney claims she has the authority to contract a person to complete a duty she has.  The courts say otherwise.  They made it very clear and we contend this contract is not worth the paper it was written on. The Taxpayers should demand all funds paid under this bogus contract be returned.

Now that we have exposed case law disproving claims made during the meeting, next there will be an implication that she can hire an employee.

As stated before, she does not have the power to hire an employee.  That power is specific to the Township, which is the elected trustees and the Supervisor. That very law outlines the exceptions on such township employment and the Township Clerk’s position is not named. Applying Dillon’s Rule, had the legislature intended for the Clerk to hire employees they would have included it in the law.  The fact they did not, is more than reasonable doubt on the subject, thus the power is not granted to the Clerk.  Especially considering the law points to an appointment of a Deputy Clerk with authorization from the Township Board.

It gets better! 

At the 1:12:05 mark of the video the attorney states, after being questioned, that there is no statute for anyone sitting at the table to enter into a contract.

WOW! May we suggest the Township get a new attorney? 

Among those sitting at the table, to my knowledge, was the Township Trustees and Supervisor at a minimum.  Guess what? Those people can, in fact, enter into a contract, contrary to what this attorney told the board member during their discussion. But please, don’t take my word for it.  Read it yourself.

60 ILCS 1/85-10 – (d) A township may make all contracts necessary in the exercise of the township’s powers. 

He even stated that a Highway Commissioner couldn’t enter into contracts.

(605 ILCS 5/6-201.10-1) – The highway commissioner of each road district has authority to contract with the highway commissioner of any other road district or with the corporate authorities of any municipality or county to furnish or to obtain services and materials related to construction, maintenance or repair of roads. 
(Source: P.A. 81-22.)

It is more than crystal clear that the Clerk does not have contracting authority to perform her duty as claimed by the Attorney for the Township. All throughout the Township code, it points to the specific contracting authority for a vast number of issues.  No such language implies the Clerk has such authority. Had the legislature intended for the Clerk to have such authority they would have provided it as they did with other Township positions.

Again, we challenge this attorney to provide a written opinion, with case law, to disprove our position.

May we suggest this Township start looking for a new attorney?

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