MORGAN CO., IL. (ECWd) -
"The law is well settled that when the constitution or the laws of the State create an office, prescribe the duties of its incumbent and fix his compensation, no other person or board, except by action of the legislature, has the authority to contract with private individuals to expend public funds for the purpose of performing the duties which were imposed upon such officer." - Ashton v Cook Co., (1943)
This rule has been in place for more than 80 years, but the Morgan County Commissioners think they are special and laws do not apply to them.
During the December 17, 2018, Morgan County Board meeting, the Board voted to hire a private attorney, and her future law firm, to represent the county for the purposes of assisting them with their "Wind Energy Ordinance and related ordinances, resolutions, and policies." This agreement also includes "execution of road use agreements for proposed wind farm projects and additional legal services as may be directed by the County Board of Commissioners or other County officials."
This legal service is entirely and completely outside the statutory authority of this County Board, and in our opinion, this contract is void and unenforceable. There is a legal and statutorily authorized way to "hire" an attorney, and this does not comply with current law nor the change in law effective next month.
Even after questioned on their authority to hire their own attorney, the Board apparently stated that the law will change on January 1, 2019, so they could hire this attorney, and they are hiring her as a "professional service." They misread the law, as the new change does not grant the power for a county to hire an attorney, ever. The new change does not grant any power to contract an attorney either, but that is exactly what they did.
A County State's Attorney is an office created by the state with prescribed duties and his/her compensation fixed. The office of State's Attorney is the statutory legal advisor to the county.
I requested the following items from Morgan County under the Freedom of Information Act:
- Copy of any resolution appointing an attorney for the county
- Copy of any Judge's signature approving the county to hire an attorney
- Copy of the State's Attorney's approval/appointment of this attorney
- Copy of anything setting this attorney's salary
- Copy of any letter of engagement with this attorney
Morgan County's response indicates this attorney was contracted/hired without any statutory authority to hire/contract with this attorney.
- No resolution existed
- No signature from a Judge approving the hiring
- Nothing from the State's Attorney approving or authorizing the hiring
- There was a letter where the future attorney listed her compensation and that of other employees of the firm
- There was an engagement letter
The Counties Code, Section 3-9008 explains how to appoint an attorney to perform duties. Subparagraphs (a-5 and a-10) state the Court or an interested party can Motion for an appointed attorney, and if the Court approves, it may authorize the appointment of an attorney. Subparagraph (a-15) authorizes a State's Attorney to file a Motion for the Court to appoint a Special Prosecutor. Subparagraph (a-20) states that prior to appointing a private attorney, the court must seek a public attorney from throughout the state, and then, if none are found, may authorize the appointment of a private attorney. Paragraph (b) states that an Order must be entered for the county to pay a private attorney, and a detailed copy of the invoice must be provided to the county.
Section 4-2003 of the Counties Code says the county must determine the number of assistant State's Attorneys and their salaries must be fixed by the State's Attorney. These ASAs shall be named by the State's Attorney and under his supervision.
The change to the law [55 ILCS 5/4-2003(b)], effective January 1, 2019, authorizes a State's Attorney to appoint qualified attorneys to assist as Special Assistant State's Attorneys when the public interest so requires.
Morgan County apparently (mis)construed this new change to mean the county board could hire/contract with a private legal firm to assist the county, without any authorization from the Court, and without the State's Attorney's authorization.