Algonquin Township Road District – Why the Attorney did not provide a legal opinion on lump sum sick “pay”

McHenry Co. (ECWd) –

As most of our readers know, we are not attorneys.  With that in mind, we encourage people who have a basic grasp of the English language to understand you do not have to be an attorney to understand what is written in our laws. Yes, some of them can be complicated but for the most part, they are not hard to comprehend.

One thing we have identified in case law, over and over, is the reference to legislative intent.  When the legislature puts a law in one statute and not another, you can’t apply it to the one without it because had they wanted it in that law they would have put it in that law.

When the law is silent, you don’t have the power to act unless it is directly tied to the inherent duty of the position.

Of interest, based on our court’s application of laws, is the Administrative Code on payment in Lieu of Sick “leave”.  Section 303.102 (c) –Payment in Lieu of Sick Leave:

(C) In order to determine the amount of sick leave to be paid upon termination of employment, the operating agency will:
1) compute the number of sick leave days granted to the employee between January 1, 1984 and December 31, 1997
2) compute the employee’s sick leave balance for that time period at time of termination; and
3)cause lump sum payment to be made for one half of the amount of sick leave in subsection (c)(1) or (2) above, whichever is the lesser amount, multiplied by the daily salary rate.

Assuming the Administrative Code did apply, which we don’t believe it does, the sick pay is tied to termination, which Miller was never terminated.  He quit when he was appointed! No termination, no application of the code if it did apply.

Why is this important to know if it does not apply to the Township Road District sick pay Miller received? 

Remember, if the law is silent, you cant do it.  In this case, the law appears to apply to state agency personnel.  Using the cross reference guide from the Secretary of State, which points to state statutes for sections of the Administrative Code, we find that section 303 crosses to two state statutes, the State Personel Code, and the Organ Donor Act.

Both of those laws say nothing about sick pay with the exception of one reference in the State Personel Code that points you to the State Finance Act, specifically the section on payment of unused sick leave.

(f) Accrued sick leave shall be computed by multiplying 1/2 of the number of days of accumulated sick leave by the daily rate of compensation applicable to the employee at the time of his or her death, retirement, resignation, or other termination of service described in this Section. 

It goes on to outline the only applicable time frame for counting days is between 1984 and 1997.  The State Finance Act, as it relates to sick pay, does not apply to Townships.   How do we know that?

30 ILCS 105/14a – Payments for unused benefits; use of sick leave. 
(a) Upon the death of a State employee.……….
(d) Upon the movement of a State employee from a position subject to the Personnel Code
(e) Upon the death of a State employee or the retirement, indeterminate layoff or resignation of a State employee

Had the legislature wanted local public bodies to be paid a lump sum for unused sick leave they would have included them in the law instead of being specific in their pointing only to State employees.  The fact there is no such language in the law for the lump sum payment for unused sick pay to a township employee, that silence is a prohibition of doing so in the eyes of the law.

As we have mentioned before, the Township Road District has been unable to produce ANY employee policy regarding the accumulation of sick leave and lump sum payouts upon leaving the employment. Such a written policy is the only way for such a payment to be legal and is outlined by law.

The Highway Code is very clear when it comes to this issue and I believe we now know why the Attorney, James Kelly, provided no real legal opinion on this matter as it is crystal clear, the law only mentions sick “leave”, not sick “pay”.  When you read the above laws and how they are worded, the Township would have had to have similar language in a policy in order to legally pay out a lump sum payment for sick leave.

(605 ILCS 5/6-201.20) Every highway commissioner with 5 or more employees in a county under township organization shall set and adopt rules concerning all benefits available to employees of that office. The rules shall include, without limitation, the following benefits to the extent they are applicable: insurance coverage, compensation, overtime pay, compensatory time off, holidays, vacations, sick leave, and maternity leave. The rules shall be adopted and filed with the township clerk (i) within 6 months after the effective date of this amendatory Act of 1991 (in the case of highway commissioners holding office on that effective date) or (ii) within 4 months after the highway commissioner takes office (in the case of highway commissioners elected after the effective date of this amendatory Act of 1991). The highway commissioner of a consolidated township road district shall file the rules with the clerk of each township contained within the consolidated district. Amendments to the rules shall be filed with the appropriate township clerk on or before their effective date. 
(Source: P.A. 87-818.)

Considering there is no such policy permitting the accumulation of sick leave to be converted to sick pay, it appears clear that Mr. Miller’s going away gift to himself is improper for several key reasons.

• No provision in the law for such a payment.
• Erroneously paid out of Road & Bridge fund as confirmed in court filings by Attorney Gooch
• Expenditure paid without proper budget appropriation, a requirement as outlined by Attorney Kelly
• No policy permitting it as required by law
• No agenda reflecting such a payment was under consideration.

We welcome Attorney Kelly to provide a real legal opinion that supports the payment Bob Miller received as all indications are the law is not on his side and we believe he knew that.

In light of what we have seen from other parts of the state, it won’t surprise me to see a “missing” copy of a policy to be discovered that addresses everything needed to justify their actions.
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