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April 24, 2024

Limestone Township – Legal opinion not as claimed by Supervisor

By Kirk Allen & John Kraft

On April 13, 2018

Kankakee Co. (ECWd) –

When public officials provide a response which misrepresents the truth, it contributes to the distrust so many people have with their elected officials.

The Limestone Township Supervisor, Marcie Meents Kolberg, is one of those who provided misrepresentations to a very troubling matter. 

Documents obtained confirmed the Highway Commissioner used public funds for legal services related to an alleged criminal matter between him and the State’s Attorney.  When questioned about this alleged misapplication of funds, the Supervisor implied in response to my questioning that it was perfectly legal for taxpayer funds to be used for the Highway Commissioner’s [private] legal bills.  She assured everyone present they have such confirmation in a written opinion from their attorney. 

You can watch the interaction below, between the 00:32-01:50 mark in the video.  My question was specific ,as was the initial answer from the Supervisor.  When further questioned, she conveniently does not recall what she asked the Attorney.

The legal opinion was NOT as represented. 

We have obtained the legal opinion and it says NOTHING about it being legal for taxpayer funds to be used for the Highway Commissioner’s personal criminal defense issues as was implied by the Supervisor.

The legal opinion provided was specific and dealt with an issue of bidding compliance. Considering the vehicle was already purchased, bidding compliance was not about making sure the law was followed by more about was the law violated. This legal opinion pointing to approval for the Highway Commissioner to hire an attorney appears to be inconsistent with the law.

The law is very specific on this point.

(605 ILCS 5/6-201.19Have authority to hire legal counsel to perform legal functions for road districts where the performance of such functions by the public official who would otherwise represent the highway commissioner would present a direct or potential conflict of interest. 

The letter from the attorney, which came well after the questionable hiring of an attorney by the Highway Commissioner, makes no references to any direct or potential conflict of interest as it relates to the performance of legal functions for road districts, which is what the law requires.  Rather it simply states: “..the legal position of the Township Board was in conflict with the position of the Road Commissioner.”  

The legal position of the Township Board is not the criteria.  The criteria is a direct or potential conflict of interest pertaining to the performance of legal functions for road districts. We have found nothing in the record that points to any such conflict with the attorney and believe this hiring was not necessary nor legal based on case law.

“Under the facts disclosed in this case, it does not appear that it was necessary for him to do so in order to carry out the duties and functions of his office.” Franks v. Township of Riley, 365 NE 2d 175 – Ill: Appellate Court, 2nd Dist. 1977

So what legal functions for this road district were being performed? 

  • The illegal purchase of a vehicle had already been made. 
  • The use of the vehicle to go to the bar had already been exposed and confirmed at a public meeting.
  • The State’s Attorney’s office was investigating this as an alleged criminal act. 

Words have meaning and when they get twisted to provide cover, which we believe is the case here, it erodes the rule of law and the public’s trust in their elected officials.

Reviewing the attorney’s legal bills reflects billing that has nothing to do with the performance of legal functions for a road district, nor do we find any conflict with those matters related to Township business. In fact, the very billing confirms some of the matters being dealt with were directly on point to my question during the meeting.

The alleged criminal conduct of the Highway Commissioner had him in hot water with the State’s Attorney and this lawyer was hired to deal with that potential criminal charge relating to the actions of the Highway Commissioner, all without board approval.

Once we exposed he was hired improperly, the board gets a legal opinion that they believe provides cover.  Sadly, the bills we see generated after the alleged criminal acts had nothing to do with bid compliance issues as it relates to the Township, as there were no bids.  Moving forward there may have been a bid compliance issue but there is no conflict for the Township attorney to handle bid compliance matters.

We have alleged the Highway Commissioner violated the Criminal Code pertaining to Misapplication of Funds.

(720 ILCS 5/33E-16Misapplication of funds.
(a) An officer, director, agent, or employee of, or affiliated in any capacity with any unit of local government or school district commits misapplication of funds when he or she knowingly misapplies any of the moneys, funds, or credits of the unit of local government or school district.
(b) Sentence. Misapplication of funds is a Class 3 felony.

(Source: P.A. 97-1108, eff. 1-1-13.)

The Highway Commissioner, at some point, realized he was facing a serious problem with potential criminal ramifications.  That is when he hired an attorney and paid for it with taxpayer funds. All matters related to possible criminal conduct is a personal matter, not a Township Road District matter.  The fact he is the Highway Commissioner means nothing.

I don’t think it’s hard to make the case he used taxpayer funds to pay for his personal legal expense to get him out of trouble from a potential criminal charge.  We have confirmed with the appropriate authorities that this expenditure was, in fact, a misapplication of funds.  Initially, the authorities believed the recovery of these funds would be a civil matter, however, after sharing the specific criminal citation above, the information was immediately forwarded to the appropriate criminal investigative agency.

  • We believe, based on case law, the hiring of the attorney by the Road District had nothing to do with the duties and functions of his office and constitutes a misapplication of taxpayer funds. 
  • We believe the legal opinion citing a conflict of interest is insufficient in light of all the facts as there is no evidence to be found in any record that there was any type of conflict or potential conflict of interest as it relates to the issue of bid publications which is what the letter claimed. 
  • We believe the Supervisor misrepresented the truth when asked about this issue by claiming the legal opinion that was provided pointed to it being OK to spend taxpayer funds for the Road Commissioners private legal problems.  
  • The legal opinion DID NOT point to what the Supervisor claimed.

We challenge Limestone Township to provide evidence of any kind that supports taxpayer money can be used by an elected official to hire an attorney to work on his behalf in a personal criminal matter.

Although the Road Commissioner has not been charged with any crime at this time, the law is clear on the point as it relates to representation.

745 ILCS 10/2-302 – “If an employee of a local public entity is a defendant in any criminal action arising out of or incidental to the performance of his or her duties, the local public entity shall not provide representation for the employee in that criminal action.”

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