UPDATE - Clarification in bold (3rd & 4th paragraph)
McHenry Co. (ECWd) -
The Township Board had a lengthy discussion during the Road & Bridge Budget hearing last month that resulted in the slashing of the legal budget line item by $100,000.00.
Do they have that power?
We contend they do not because of one
clause word in the Highway Code, however, it is clear their action means nothing and was more about creating drama, thus the title, a lesson in futility.
The statute must be read as conjunctive, not disjunctive. The board's first obligation is to adopt the tentative budget. That is not optional as we further evaluated the language of the statute. Once the budget is adopted they must adopt appropriation ordinance, or any part as the board of trustees deem necessary. That last portion referencing what they deem necessary is inclusive and does not mean they can take away. We believe the Newport case below is support of such interpretation.
605 ILCS 5/6-501 - The township board of trustees or highway board of trustees, as the case may be, at the public hearing shall adopt the tentative budget and appropriation ordinance, or any part as the board of trustees deem necessary.
The attorney claimed there was no real case law on this matter. We disagree as this was not just about deeming a legal budget line item necessary. James Kelly used a zero line item amendment for salt as an example, confirming doing so would be a problem. If they did that, it would not allow the Road District to comply with the laws that require them to take care of the roads. So it is clear, Kelly understands the budgeting limitations but we find he has missed the boat once again as it relates to the legal bills. Had he done his homework he could have advised the board on the case law on this point and avoided all the drama that gets misrepresented in the local media.
What happens if the legal bills go over the amount deemed necessary by the board? Does the lawyer not get paid? What if his salt budget was cut? Does that mean he can't buy more salt? The fact of the matter is the budget would have to be amended to address the shortage so that the Road District can do its job, much like the Township did with their legal budget line item.
Puting a big number in the budget does not mean that is what is going to be spent. As an example, I know Fire Departments will put in their budget an extra $500,000.00 for a new truck. Some board members may "deem" that not necessary, all while forgetting or ignoring the fact if the grant they applied for is awarded, the only way they can spend the grant money is to have it in the budget. Putting it in there in advance avoids having to call another meeting and going through a budget amendment process.
Legal bills are no different, especially when case law is directly on point. A fact Kelly failed to mention.
The Newport Road District V. Supervisor Pavelich is directly on point with what is going on in Algonquin. In the Newport case, both the circuit court and the Appellate court ordered the Township to amend the budget to pay the bill. The appellate court made it very clear on how specific subject laws are to be applied in relation to general statutory provisions. As it relates to the Algonquin Township Road District, there is "specific" statutory direction that controls the matter on legal representation.
"The statute at issue in this case provides clear legal criteria to resolve the issue. A highway commissioner is entitled to legal counsel if counsel who would otherwise represent him would present a direct or potential conflict of interest. 605 ILCS 5/6-201, 6-201.19 (West 2010). The legislature did not grant defendants any decision-making power to conclusively determine whether a commissioner is entitled to legal counsel. Thus, the trial court's decision did not violate the separation-of-powers doctrine, and Moore is not controlling here."
"A statutory provision addressing a specific subject controls over a general statutory provision, and the specific provision should be applied. Clarke v. Community Unit School District 303, 2012 IL App (2d) 110705, ¶ 29. Thus, defendants' argument fails because their interpretation not only allows the general provision to prevail over the specific provision but also abrogates the specific provision. ¶ 42 Even if we were to accept the claim that the general provision addressed fees, we would read these provisions in pari materia and would come to the same conclusion. A basic principle of statutory construction is to view two statutory provisions that address the same subject with reference to one another to give them harmonious effect. Citizens Opposing Pollution v. ExxonMobil Coal U.S.A., 2012 IL 111286, ¶ 24. Assuming, arguendo, that the general provision requires a highway commissioner to include legal fees in the budget and obtain approval from the board of trustees, it does not follow that there are no exceptions to this rule. Rather, the specific and general provisions can be read in pari materia and given harmonious effect by applying the specific provision only in instances in which there is a conflict of interest, as in this case. Therefore, the trial court did not err by ordering the Township Board to allocate Road District funds for payment of plaintiffs' legal fees for this case and the 2009 lawsuit."
The point is, no matter what this board did in their attempt to create headlines against the Road District, they are going to have to pay the legal bills that come in on this matter and case law supports that.
During that budget hearing, Supervisor Lutzow stated Gasser should have his attorney work within the budget. Such logic defies their own actions. They had to amend the budget in order to pay legal bills, thus failing to apply their own suggestion to the Road District. Read (Good for Gooch, not the Gasser). He also stated, "$150,000.00 is a lot of money, a lot of money for one attorney, is a lot of money for one attorney to be defending a lawsuit." Yes, that is a lot of money but regardless of the amount, a public body, the Road District, has the right to defend themselves. Never mind that their own legal budget was amended for the same figure. Again, do as I say, not as I do.
Considering the attorney was present for this entire escapade, we can only wonder why he was silent on the case law pertaining to the paying of legal bills for the Road District?
We suspect if the Board refuses to pay the legal bills they will end up creating yet another lawsuit that will cost them more and case law points to them losing such a venture.