Part 1: Watchdogs respond to Kankakee’s inherently incorrect memo on KMRA appointments –

KANKAKEE, IL. (ECWd) –

After we wrote about alleged disqualifications of six out of seven KMRA Directors, the city of Kankakee had an attorney write a memorandum on the subject, talk about it during the past city council meeting, and declare our allegations were “inherently incorrect, erroneous, frivolous, and incompetent ramblings that are common in the current hyper-partisan, hyper-connected, “twitter media” era.” Nevermind that our allegations never mentioned any political party. read our previous articles here and here.

The memorandum we are responding to was prepared by Ross D. Secler and Burton S. Odelson, from Odelson & Sterk, Ltd., Attorneys at Law.

We appreciate the effort put forth to advocate for their client, but we cannot let this memorandum stand unanswered.

Paragraphs from the memorandum will be indented, our response will be below each of the indented paragraph(s):

First, we must re-state the allegations we made:

1. That six of the seven Directors are disqualified from serving on the KRMA
2. That the four Mayors are disqualified under the Illinois Municipal Code
3. That the two Aldermen are disqualified under the Illinois Municipal Code and the Public Officer Prohibited Activities Act
4. That the KRMA By-laws fail to provide for the “composition and manner of appointment” of the Directors
5. That the Intergovernmental Agreement establishing the KRMA fails to provide for the “composition and manner of appointment” of the Directors which would somehow permit how KRMA is currently operating
6. That the KRMA is “under” the various municipalities because no laws of this state, KRMA By-laws, or KRMA Intergovernmental Agreements grant the KRMA the power to sue or be sued as this Agency is currently operating.
7. That the KRMA has never submitted an Annual Financial Report (“AFR”) to the Illinois State Comptroller as required by each and every stand-alone unit of local government
8. That both Kankakee and Aroma Park submit their AFRs to the Comptroller and both list the KRMA under Section 9 of the AFR where a local government lists governmental entities (KRMA) that are part of or affiliated with the primary government (Kankakee and Aroma Park)

Kankakee:

“You have inquired about the laws governing the Kankakee River Metropolitan Agency (the “KRMA”), a Municipal Joint Sewage Treatment Agency, and whether elected municipal officers (i.e. Mayor, Aldermen) from the City of Kankakee (the “City”), may simultaneously serve as Directors of the KRMA.”

“In short, YES, as discussed herein, the Illinois Constitution and the Illinois Intergovernmental Cooperation Act, 5 ILCS 220/1, et seq., clearly establish the authority for an elected municipal officer of a participating municipality to sit as a director of the KRMA. Certain arguments and allegations made to the contrary reflect a fundamental misunderstanding of the constitutional authority and policy in favor of intergovernmental cooperation in addition to well-established principles of municipal law. Not only are the allegations, on their own, inherently incorrect, there is overwhelming constitutional and legislative support for the legal validity of the current makeup of the KRMA’s Board of Directors.“

ECWd:

We never questioned any authority under the Constitution nor the Intergovernmental Cooperation Act for the formation and operation of the KRMA. This memo is WRONG when it claims there is clearly established authority for an elected municipal officer to sit as director of the KRMA. Any claims purporting clearly established permissions in the case of the KRMA show a fundamental misunderstanding of statutory construction and legislative intent of the Intergovernmental Cooperation Act.

As for the last sentence, we disagree there is any legislative or constitutional support for the current appointees to the KRMA’s Board of Directors.

Kankakee:

“The KRMA and its Board of Directors clearly reflects the exact spirit of the Illinois Constitution and the Intergovernmental Cooperation Act’s intention to foster maximum local authority and flexibility to cooperate for the efficient provision of services to taxpayers. The only further recommendation for the KRMA Board of Directors, although not required, would be to slightly amend the IGA and By-Laws to bolster and explicitly provide additional qualifications for appointed Directors. Nevertheless, as will be discussed herein, the current makeup of the Board of Directors is completely legal in all respects under Illinois law.”

ECWd:

If everything is how it should be, then why would anyone recommend “slightly amending” the IGA and By-laws? Could it be because we were absolutely correct in our allegations?

Also, the Intergovernmental Cooperation Act does not permit “providing for additional qualifications” for appointed directors.  It does, however, provide for the IGAs to provide for the “composition and manner of appointments.” “Composition” means how many and from which member unit of local government, “manner of appointments” means who is their appointing authority.

Kankakee:

“The KRMA exists, pursuant to the “Amended and Restated Municipal Joint Sewage Treatment Agency Intergovernmental Agreement” (the “IGA”) and the KRMA By-Laws, all of which were adopted by the participating municipalities pursuant to, inter alia, Section 3.4 of the Intergovernmental Cooperation Act. The KRMA is responsible for treating wastewater from the four-member municipalities (Kankakee, Aroma Park, Bourbonnais, and Bradley), which jointly established, operate, and utilize the “Regional Wastewater Treatment Facility” located in Kankakee. The Current version of the IGA was executed in 1999 and the By-Laws are from 1996.“

ECWd:

We agree with all of this paragraph.

Kankakee:

“The KRMA is governed by a seven-member Board of Directors consisting of four persons appointed by the Mayor of the City of Kankakee, and one person appointed from, and appointed by the Mayors of, each of the Villages of Aroma Park, Bourbonnais, and Bradley. IGA, Art. II, A & C; see also 5 ILCS 220/3.4(b) (“The composition and manner of appointment of the Board of Directors shall be determined pursuant to the intergovernmental agreement.”)”

ECWd:

We agree that the IGA states the “composition” (how many directors and from which unit of local government) and the “manner of appointment” (that the various Mayors appoint their Directors), but also state that the current makeup of the KRMA board is in violation of the law.

Kankakee:

“It is also our understanding that, at all relevant times hereto, the Board of Directors of the KRMA has been composed of, at least in part, the elected mayor(s) and aldermen of member municipalities.

In addition to listing specific, additional powers of the KRMA, the IGA specifies that the KRMA Board of Directors has “any and all powers enumerated or implied in the Municipal Joint Sewage Treatment Act” (5 ILCS 220/3.4). See IGA, Art. II, B.”

ECWd:

We agree.

Kankakee:

“Because the KRMA is itself an agency considered a “municipal corporation” that constitutes a form of “special district” and because the KRMA is an agency created under the Illinois Intergovernmental Cooperate Act, there is (i) clear legal authority to expressly allow officers of member municipalities to serve on the KRMA Board of Directors, and (ii) there are no applicable, valid prohibitions against same and any allegations raised arguing as much, should be disregarded as nothing more than erroneous, frivolous, and incompetent rantings common in the current hyper-partisan, hyper-connected, “twitter media” era.”

ECWd:

Wrong.

The KRMA is a “municipal corporation” and “body politic” under the Intergovernmental Cooperation Act, which means it was created by the action of a law (see this article) and only has the powers granted it. However, (i) there is NO clear legal authority to expressly allow officers of member municipalities to serve on the KRMA Board of Directors, and, (ii) there ARE applicable, valid, statutory prohibitions against the same.

This does not mean the KRMA is not “under” the municipalities forming it.

This brings us to the end of page 2 of the memorandum. Another forthcoming article will delve into the dirty details of the remaining pages…

In the meantime, laugh at this presentation:

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