McHenry Co. (ECWd) -
Once again the Algonquin Township Supervisor Chuck Lutzow and his clown act have brought laughter to the legal industry with the help of his advocate, attorney James Kelly.
We exposed all the reasons why the Supervisor did not have the authority he claims and outlined key factors in this article. Basically, you can't delegate your elected duties to another elected official, but in the eyes of James Kelly and the lead Clown, Lutzow, last night's circus act was a real high wire thriller that even included some magic.
For years we have heard people try to imply that since we are not attorneys we don't know what we are talking about. No problem for us, as to date we have yet to have one of those people prove us wrong on paper. Lots of lip service, but that's where it ends 99% of the time. If they do have the courage to put it in writing, we have found everytime they have failed to apply the law and case law properly.
Many of those saying we are not attorneys are an attorney. Amazingly, those all-knowing legal minds voice their opinion, much like Kelly did at last night's circus, and just because an "attorney" said it, it is gold. Never mind that those same attorneys get shot down by judges on a regular basis.
Last night's legal input from Kelly to the Algonquin Board brought laughter, sadness, and real concern.
Supervisor Lutzow claimed he wanted to know what the best way to hire a person was. We suspect, as did trustee Lawrence, the reason was based on the Supervisor taking the hiring and compensation setting for a township employee into his own hands, which we exposed in this article last month.
It was nice to see Trustee Chapmen and Lawrence vote NO on the bogus "delegation of authority resolution" drafted by attorney Kelly, even though no one asked for such a resolution in the first place. I don't think I would pay that legal bill since it was confirmed no one asked him to draft a resolution.
As the board discussed the resolution, Kelly chimes in to clarify language in the statute pertaining to employees.
"It says "may"
That may be one of the only accurate statements we heard all night from the attorney.
Yep, the township statute on employees says the Board may employ and fix the compensation of the Township employees that the board deems necessary, excluding the employees of the offices of supervisor of general assistance, township collector, and township assessor. Read it for yourself with a full explanation in this article or the statute at this link.
Why do we laugh at that? Becuase the statue does not say the Supervisor may employ and fix the compensation for the Township employees that he deems necessary. Not really hard to see that the law is a specific duty that they may exercise if they deem it necessary, with specific exclusions.
"it doesn't, bar, there is no prohibition against the supervisor hiring an employee"
This is the oldest word game in the book and we see both elected officials and attorneys use it all the time to make their argument. It reminds me of our former, keyword former, county board chairman who after being informed they did not have the power to do what they were doing chimed in and said, I agree, the law does not give us that power, but it doesn't forbid it either.
Wrong answer, much like Kelly's comments that snookered the lead circus clown Lutzow along with his juggling support team, trustees Shea, and Victor. Chapman and Lawrence saw right through the word game.
The law "does" bar and there is, in fact, a prohibition against the supervisor creating a position of employment and setting the compensation, other than for General Assistance. But oh don't take our non-lawyer word for it. Take the high courts words for it, which are the ones that get to tell lawyers like Kelly they are wrong.
“They come within the principle of law that where the legislature has withheld a power it is the same as though the exercise of the power was prohibited by law. (Ashton V County of Cook)
In this case, the legislature provided clear language regarding the power to employ to include restrictions on that power. The law was silent on the power to delegate and applying the high court’s language on such silence, that silence is the same as though the exercise of the power was prohibited.
At the 26:10 mark of this video, Attorney Kelly represents the Supervisor has authority to hire because a circuit court ruling outlined that he is the Chief Executive Officer of the Township. What Kelly so craftily failed to point out was the word game he was playing, as well as the fact the very case he was citing was overturned by the Appellate court.
In the case he cited, Judge Caldwell made it clear that the Township Board of Trustees has the authority to employ and fix the compensation of Township employees and cites the same law we did. He went on to point out a key difference in "employ" and "hire". A fact Kelly conveniently left out of the discussion.
In short, the Township Board is in charge of employment, compensation, benefits etc, as pointed out in his opinion on page 32 of the order found in this article posted on McHenry County Blog.
Reading Judge Caldwell's opinion, then reading the Appellate Court opinion, which Kelly failed to make reference to, it would appear the resolution they passed is not worth the paper it was written on. The reason is two-fold, as we outlined before.
For starters, Kelly is dead wrong as it relates to an elected official being able to delegate their authority to another elected official. There is absolutely no authority for such action. In fact, reading the case Kelly points to makes it clear any rule that infringes on the rights of the Supervisor is an illegal restraint on his express and implied statutory powers.
One only need to change the word Supervisor to Township Trustees to see that the same applies to them. You can't create a rule that infringes on the rights of the Trustees. Doing so is an illegal restraint on their express and implied statutory powers.
Even Judge Caldwell points out the Township Board is the one that controls employment. They do this by first deeming such employment necessary. Before a Supervisor can "hire" anyone, the Board of Trustees must first deem such employment necessary and set the compensation.
Kelly provided wordsmithing to the board that in our opinion misled them on the law.
Of interest in the higher court's ruling that overturned the lower court Kelly referred to is this statement:
"Quite simply, the legislature granted to the Board the power to consent (which, by implication, entails the power to withhold consent, otherwise consent would be meaningless). Out of due respect for the legislature, let alone the Board itself, the trial court should not have interfered with the discretion possessed by the Board on this issue."
Applying the same logic, the Board of Trustees has the power to employ. When they deem employment necessary, the Supervisor can hire someone for that established employment need. It would appear, if the board were to deem such employment no longer necessary, the employment would end with such a decision.
Additionally, the language used by the higher court makes us wonder why on earth Kelly would cite the lower courts case?
"That the trial court was interfering with the prerogatives of a unit of local rather then state or national government provides no justification for its order."
In closing, the court overturned the only portion of the case before them, the lower courts order to the board to confirm the appointment of the attorney.
"In light of the foregoing, the order of the circuit court of McHenry County directing the members of the Board to confirm Nelson's appointment to the position of township attorney is reversed and this cause is remanded for whatever further proceedings are appropriate."
The case was reversed and remanded however we have not obtained any copies of further proceedings, assuming there were any. We will update when we determine if any further proceedings took place.
With all this in mind, may we once again urge Supervisor Lutzow and Township attorney James Kelly to resign!