Part 2: Watchdogs respond to Kankakee’s inherently incorrect memo on KMRA appointments –

KANKAKEE, IL. (ECWd) –

Continuing with our response to Kankakee’s incorrect interpretation of who may or may not serve as a Director of the KMRA:

Starting on Page 3 of the memo:

Kankakee:

“The Illinois Constitution and the Illinois Intergovernmental Cooperation Act Provide Authority for the KRMA’s Creation and the Ability of Member Municipality Officers to Serve on the KRMA Board of Directors”

ECWd:

Yes and No: Authority is certainly provided to establish the KMRA, but there is absolutely no authority for member municipal officers to serve on the KMRA Board of Directors. Read our comparison of the different grants of authority for appointed officers under the Intergovernmental Cooperation Act (here).

Kankakee:

“The KRMA is a “municipal corporation,” as designated both by statute and by the IGA, with a considerable amount of autonomy to form a type of “special district” as used in Article VII, Section 1 of the Illinois Constitution. See Chicago Transit Auth. v. Danaher, 40 Ill. App. 3d 913, 914, 917 (1st Dist. 1976) (finding that the Chicago Housing Authority and Chicago Transit Authority were both “special districts” because they are relatively autonomous, possess a structural form, an official name, perpetual succession, and the right to make contracts and to dispose of property). These qualities translate to the powers and authority vested to the KRMA.

The caveat to the KRMA constituting its own “special district” like, for example, the Metropolitan Water Reclamation District of Greater Chicago or other, independent districts that are created, sua sponte, by statute (or after passage of a referendum), the KRMA exists as a result of the IGA entered by the member municipalities, which is authorized by the Illinois Constitution and the Illinois Intergovernmental Agreement Act.”

ECWd:

Yes, the KMRA is a municipal corporation, but as it is currently formed, with its current By-laws and IGAs, it is still “under the municipalities” forming it because it cannot sue and be sued in its own name and because it does not submit its own Annual Financial Reports to the Illinois  Comptroller. Therefore, it is not autonomous.

Adopting new Intergovernmental Agreements granting it the authority to sue and be sued, and filing its own Annual Financial Reports to the Comptroller would fix this particular problem, and also fix the problem with Mayors serving as Director because it would no longer be “under” the municipality. No change could ever fix the problems of Aldermen being appointed by the Mayors in violation of the Public Officer Prohibited Activities Act.

Kankakee:

“Article VII, Section 10 of the Illinois Constitution specifically addresses, and allows for, “intergovernmental cooperation.” Article VII, Section 10 intentionally provides “maximum local authority and flexibility to cooperate without prior legislative permission.” 1977 Il. Atty. Gen. Op. No. S-1324 at 4 (citing the Record of Proceedings for the 1970 Illinois Constitutional Convention). The Illinois Intergovernmental Act is similarly broad to codify and encourage intergovernmental cooperation. See id.“

ECWd:

We agree with all of this paragraph.

Kankakee:

“While both the Illinois Constitution and the Illinois Intergovernmental Agreement Act provide broad authority for municipalities (and other units of government) to enter into intergovernmental agreements and jointly exercise powers, privileges and authorities therein, the Illinois Constitution speaks directly to the issue raised herein with respect to the ability of elected officials of a member municipality to serve on the Board of Directors of an agency created by intergovernmental agreement.

Article VII, Section 10 (b) of the Illinois Constitution provides:
Officers and employees of units of local government and school districts may participate in intergovernmental activities authorized by their units of government without relinquishing their offices or positions.“

ECWd:

We agree with both paragraphs but must point out that the legislature would never have established a Constitution in which one Section would cancel out another Section of the same Article. As such, Kankakee cannot use Section 10(b) as authorization for elected officers of a municipality to serve as Directors of the KRMA.

Since Kankakee claims the KMRA is a “Special District” (and we agree) then it must also follow Article VII, Section 8, which provides in part that “the General Assembly shall provide by law for the selection of officers of the foregoing units“ (which includes special districts). Article VII, Section 10(b) cannot cancel out Section 8. It would make no sense. The General Assembly “provided by law for the selection of officers” (of the KRMA) in both the Public Officer Prohibited Activities Act and the Intergovernmental Cooperation Act.

Kankakee:

“The Illinois Attorney General has previously opined that, based on the constitutional language and based on the Report of the Illinois Constitutional Convention, Article VII, Section 10(b) of the Illinois Constitution “is intended to allow officers and employees of any participating unit to take part in the administration of intergovernmental activities. 1977 Il. Atty. Gen. Op. No. S-1324 at 7. The Illinois Attorney General thus opined that an officer of a participating unit of government could sit on a joint administrative board crated by intergovernmental agreement without having to step down from the former office. Id.“

ECWd:

Yes, the AG did write such an opinion, however, it did not consider the Public Officer Prohibited Activities Act (we believed this was adopted after the AG’s Opinions). . . and, the “joint administrative board” the AG was writing about was not its own unit of local government, not considered a municipal corporation, and not a Special District. So this AG opinion is irrelevant to the issue at hand with the KRMA.

Kankakee:

“Hence, there is clear, explicit Constitutional authority that allows officers of a KRMA member municipality to directly participate in the governance and administration of the KRMA, through its Board of Directors. Because the KRMA is a governmental entity created by intergovernmental agreement, the member municipalities are the “stakeholders” whose interests the KRMA serves. The Illinois Constitution clearly envisions the desirability of both intergovernmental cooperation and the ability for participating governmental officers to directly administer an agency created by intergovernmental agreement, particularly when the participating municipalities have agreed to do so.”

ECWd:

Wrong. Notice the additional word Kankakee used: “directly” participate? Additionally, the Illinois Constitution clearly envisioned this type of Special District thru the inclusion of Section 8 of Article VII. The current makeup of the KRMA board violates state law.

Kankakee:

“This is further bolstered by section 3.4 of the Illinois Intergovernmental Cooperation Act, which directs that to the underlying intergovernmental agreement determines the manner of appointment and composition of the board of directors for a municipal joint sewage treatment agency. 5 ILCS 220/3.4(b). The IGA for the KRMA specifies that the Mayors of the member municipalities appoint Directors (4 from Kankakee, and one from Aroma Park, Bourbonnais, and Bradley each). IGA, Art. II, C; see also KRMA By-Laws, Art. II, §1. There is no stated prohibition therein against the Mayor(s) appointing him or herself. Finally, if member municipalities so choose, they can agree to change the IGA (or the By-Laws) to best suit their needs.“

ECWd:

Yes, and that is exactly what we have alleged, that the IGA governs, and additionally alleged that the IGAs cannot violate state law, such as the Municipal Code or the Public Officer Prohibited Activities Act. We noticed that the Kankakee memo never mentioned “Aldermen” in this paragraph, only “Mayors” – which makes us think that was intentional since the Public Officer Prohibited Activities Act contains stronger language directed at the prohibition of Aldermen from being appointed to another office by the Mayor.

Kankakee:

“Therefore, the current KRMA Board of Directors absolutely qualifies under the governing agreement, relevant statute, and the Illinois Constitution.”

ECWd:

WRONG! They are absolutely disqualified.

Kankakee:

“This opinion does not change even when considering other parts of Illinois statutes generally discussing certain “incompatibility of office” prohibitions, as erroneously alleged by certain, seemingly faux-media internet outlets. The allegations brought to our attention are baseless, frivolous and should be ignored.”

ECWd:

WRONG! Yes it does change when applying other statutes expressly prohibiting this activity. We believe it to be dangerous for a law firm to state as fact otherwise. It placed elected officials, and particularly Aldermen, in the unenviable position of running afoul of the law. Stretching the boundaries of advocating for a client to the point where it cannot be substantiated is wrong. Throwing personal attacks to somehow discredit the messenger(s) is equally as wrong and only shows you cannot support the “facts” you purport are on the side of the KMRA.

We are as much “faux-news” as this memo’s authors are “faux-attorneys.”

We are at the end of page 4 and will finish our response in the final upcoming article.

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