Shelby Co. (ECWd)
Our recent article on Shelby County dealt with the improper hiring of legal counsel by the County board and can be read at this link. We routinely find local reporting following our exposure of local matters. In this case, the reporting speaks volumes about the County and the direction it is heading.
The Shelbyville Daily Union correctly reported January 17, 2020, what the requirements were for a County to hire an attorney and obtained feedback from the County Chairman on their actions and then published those comments.
Time for some fact-checking of the County Chairmans Bruce Cannon's comments published by the local paper:
- "The State's Attorney advised the county that it was perfectly legal to appoint Ed Flynn to represent the county"
January 15th we asked the States Attorney: "Do you know or can you tell me who gave the county board a green light to hire outside counsel?
January 23rd we asked the County Chairman: "Can you tell me who told you that it was legal to make that hiring?"
No response to date.
Let's assume the Chairman's claim is true. If so, we contend the County has a bigger problem if such advice was actually given. The case we cited is Ashton V. Cook, a 1943 Illinois Supreme Court case. While some have tried to dismiss that case as being old, the fact of the matter is it has not been overruled or negatively treated on appeal and is even still being cited as recently as 2017.
The county government only has the power granted and can not legally invoke powers never granted. There is no provision in the Counties Code for a County Board to hire legal counsel to represent them in certain matters. Please don't take our word.
In another Illinois Supreme Court case, Cook V Bear Sterns - 2005:
"This court held that by law the State's Attorney is "the attorney and legal adviser of the county officials in all matters pertaining to the official business of the county." Ashton, 384 Ill. at 297. The Counties Code neither expressly nor implicitly authorized the county board to employ private attorneys. Ashton, 384 Ill. at 299. Therefore, the court held that private counsel could not enforce his contingent fee contract to perform legal services for the County, as the contract was wholly void. Ashton, 384 Ill. at 301." That case has not been overruled or negatively treated on appeal either.
Based on what we read in the paper and our understanding of applicable laws, I asked the County Chairman the following, of which I have recieved no response.
- Can you tell me who told you that it was legal to make that hiring?
- Can you point to any statute that permits a private attorney to be hired by the County Board?
- The resolution signed points to the attorney Ed Flynn being an assistant state’s attorney. That position is a position of employment with the county. Do you know of any other employees that provide invoices to the county to get paid?
- Assistant State’s attorney is by statute an employee of the County. Employees should receive W2’s for IRS reporting. Can you explain why no W2 exists for the Assistant State’s Attorney Ed Flynn?
- The statute reflects assistant state’s attorneys receive a salary set by the States Attorney. Can you provide any authority for the County Board to set an hourly rate for an assistant state’s attorney?
- Can you tell me who Mr. Flynn answers to? I assume the County Board since it was the county board that hired him?
We suspect we are not getting an answer to our question because they now realize their actions were in direct conflict with well-established law.
Quotes from the paper indicate someone needs to take their shovel away as their hole is getting quite deep.
"He was appointed as an assistant state's attorney. He is like Assistant State's Attorney Brian Bach only his (Flynn's) role is a labor attorney."
100% false and their own paper trail proves it.
Assistant State's Attorneys are not appointed or hired by the County Board. That is a function of the State's Attorney's office or the Court. What is most telling in this matter is the fact the paper trail exposes this County has not been following the law or their own adopted resolutions for some time. For example, the State's Attorney is the sole person who can name their Assistants, but before that can happen, the number of such assistants shall be determined by the County Board. We asked for such a determination and the result is most telling.
In June of 1977, the County Board approved the establishment of 1 Assistant State's Attorney on a part-time basis and set the expense limit for such a position to not exceed more than $6,000.00 a year. While a State's Attorney is the one that fixes the actual compensation for such a position, it is subject to the budget limitations set by the County Board, $6,000.00 in this case. Reading their resolution it appears the County Board has never increased the number of Assistants and has been approving far more in compensation than was limited by their own resolution which can be viewed at this link.
One only needs to look at statutes, case law, and their own paper trail to disprove the Chairman's claims. Assistant State's Attorneys are employees of the County and are to receive a salary as outlined in the law. They also receive W2's related to their wages earned. Those wages are fixed by the State's Attorney. They also are required to take the same oath of office as the State's Attorney and answer to the State's Attorney, not the County Board. See 55 ILCS 5/4-2003
In this case, the private attorney that was hired is submitting invoices. Employees do not submit invoices. Employees recieved W2's for IRS reporting of wages however this attorney has never been issued a W2. To our surprise, he has never been issued a 1099 either which could be an IRS concern. We have confirmed he will be getting a 1099 by the end of the month. We asked for a copy of his Oath of Office and to date have not recieved a response.
The local paper raised a very valid question in their coverage:
"Once a private attorney is appointed as an Assistant State's Attorney is he serving as a public attorney, who gets paid for his work?"
The answer is yes and the reason is that position is a position of employment with the County and is to be paid by salary. Additionally, that appointed attorney is protected by the same immunity laws which apply to such a position. There is no such protection for a private attorney hired without legal authority as done in Shelby County.
Another interesting quote from the Chairman:
"That comparison is not even apples and oranges," Cannon said. " In that case, they are talking about forging checks."
It would appear the Chairman is not up on the case we pointed to in Piatt County nor the criminal meaning of forgery. Forgery, as defined in the criminal code, is far more than forging checks. In the Piatt County situation we covered in this article, the forgery was the altering of documents provided to the media. It had nothing to do with checks, but all that aside, the comparison we provided was in relation to the County Chairman taking action to hire private counsel.
"··when Bruce Cannon acts, he never acts alone," Cannon said. "Flynn represented other counties and we passed a resolution to appoint him as an Assistant State's Attorney."
Time for clarity.
Cannon is correct, he did not act alone. The entire County Board voted for the illegal hiring of the attorney. Additionally, the resolution points to a "Special Assistant State's Attorney", not simply an Assistant as he implies. Why is that significant?
Effective January 1, 2019, which is much later than the action the board took, the law was changed and now provides that a State's Attorney has the power to appoint not only an Assistant State's Attorney but a Special Assistant State's Attorney.
(b) The State's Attorney may appoint qualified attorneys to assist as Special Assistant State's Attorneys when the public interest so requires.
The legislative intent behind the change in the law was related to complex litigation. Note that labor negotiations are not complex litigation. In this case, the board hired an attorney to do the work of the State's Attorney's office. (Transcript see pages 181-182)
The resolution that Cannon signed points to this attorney being a Special Assistant, not just an Assistant. Considering there was never any such provision in the law for them to do that, it's clear it was not legal.
More importantly, the very resolution they adopted outlines the hiring is for Labor Negotiations for the 2014-2015 budget year. Even if their actions were legal, which they were not, there was no provision in that resolution extending his hiring beyond the time frame outlined in the resolution. So in short, they have been paying this guy for years without any proper authorizations.
After our initial article ran we have had numerous tips regarding other counties doing a similar thing with the same attorney. We have confirmed those claims and will address those actions by other counties in future articles.