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April 17, 2024

Algonquin Township Road District – Legal opinion points to sick pay not legitimate

By Kirk Allen & John Kraft

On May 16, 2018

McHenry Co. (ECWd) –

We recently wrote this article about Attorney Gooch confirming the sick pay to Bob Miller from the Road & Bridge fund was erroneous.  Just about the time we thought the final disclosure on the sick pay where we would share the Illinois Administrative rules on sick leave had arrived, up jumped another legal opinion that will put that article on hold just a few more days.

James Kelley provided a legal opinion to the Board of Trustees after being questioned about the street sweeper purchase in the May 2017 Board meeting.  Although I had read his response several times, today it jumped out at me like a lion.

“Atty Kelly said that the board’s authority is to audit bills, but if an expense is in the budget, it is a legitimate expense.

Once again we must point out why this statement is so meaningful to the taxpayers of Algonquin Township.

Kelly’s legal opinion and advice to the Board of Trustees was that an expense in the budget is legitimate, which must also mean any expenditure, not in the budget is not legitimate, as you can’t have it both ways.

That being the case, how is Bob Miller’s sick pay be legitimate when it was not in the budget Mr. Kelly?

Attorneys can be wrong, and in many cases are wrong, but never challenged, as we have proven over the years.  Kelly contends if an expense is in the budget, it is a legitimate expense.  That is not true.  What he should have said is that if it is in the budget, and is a legitimate road district expense, then it is legitimate bill before the board.

On an unrelated matter to sick leave, some more Kelly related matters have popped up.  Reading Kelly’s bio on his website he outlined that he “advised the County Board on parliamentary procedures and acted as the Board Parliamentarian.”

For a guy that provides parliamentarian advise, may we suggest reading up on some case law on abstentions by elected officials, which are much different than those in the private sector?  You will note about the 11-minute mark of the video from the last regular meeting, Board member Shea begins discussing a payment on the table for a vote to the Historical Society, which he is a sitting Board member of. Kelly instructs him to not discuss if he is abstaining.

Sadly, there is no legal way for board member Shea to abstain from performing his elected duties without express statutory instruction on such an abstention.  If a quorum is present, municipal legislators cannot avoid their voting responsibilities by refusing to vote when present at a meeting. (See Launtz v. People ex rel. Sullivan (1885), 113 Ill. 137; see also People ex rel. Anderson v. Chicago & North Western Ry. Co. (1947), 396 Ill. 466.) (Known as the Prosser Rule) 

You would think a claimed parliamentarian advisor and local government attorney would know that?

A simple question elected officials should ask themselves before voting on matters is this:

Where in the statute does it give me the power to do what I am about to do?

You will find clear instructions on abstentions for conflicts in places like the Township Code, Municipal Code, Fire Protection District Act, and other local government state laws.  Those instructions are specific and using statutory construction we know that an abstention outside those provisions, as was allowed at the last meeting, is not proper.

Is it time for Algonquin Township to start shopping for a new attorney?

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