AG weighs in on KRMA appointments; no definitive answer –

Kankakee, IL. (ECWd) –

The Illinois Attorney General’s Opinions Bureau issued a letter concerning municipal alderman appointments to the Kankakee River Metropolitan Agency’s (“KRMA”) Board of Directors.

We were hoping any opinion would also include advice on legalities of Mayors appointing themselves to the KRMA, but it was not within this letter. Additionally, since this issue has been brought up, Kankakee has appointed its Comptroller to the Board of the KRMA and this Comptroller appointment needs a separate opinion.

We wrote several article last year on these appointments which can be reviewed at this link (here).

Although no definitive answer was forthcoming, the final recommendation of the Opinions Bureau was to either: 1) file for declaratory judgment to resolve the matter, or, 2) contact the legislature and ask them to amend statutes regarding qualifications of Directors to make the statute more clear.

Here are the bullet points taken from the letter:

AG: Aldermen and KRMA Director are both “public offices” and the common law doctrine of incompatibility of offices applies to this situation

AG: Kankakee City Aldermen are subject to the prohibitions found in Section 2 of the Public Officer Prohibited Activities Act

AG: Section 2 of the POPAA contains an exception which potentially applies to the KRMA, where simultaneous tenure as alderman and KRMA Director is “authorized by law.” 

AG: Section 3.4 of the Intergovernmental Cooperation Act has some ambiguity, the General Assembly debates show little guidance on the intent of the GA to permit alderman serving on this board, Section 10(b) of the Constitution would appear to authorize these appointments, but it cannot be said that simultaneous service as alderman and director “is authorized by law.”

“Therefore, your office (State’s Attorney) may wish to consider filing a declaratory judgment action to resolve this matter. . . Alternatively, you may wish to contact your representatives in the General Assembly and seek the passage of amendatory legislation to clarify the ambiguity that exists within Section 3.4 of the Intergovernmental Cooperation Act, and Section 2 of the Public Officer Prohibited Activities Act.”

What we believe should have also been considered in the letter, but was not:

• Section 3.1-15-15 of the Illinois Municipal Code which prohibits the holding of other offices “under” the municipal government. Since the KRMA is not separate and apart from the municipalities, it is “under” them.
• Section 3.1-55-10 prohibits elected official’s financial interests (in any person or corporation’s name) in any business, contract, work, etc., if it is paid from the treasury of the municipality or by an assessment levied by statute or ordinance.

The end result is that there is still no official definitive answer on whether elected officials of a municipality can serve simultaneously as a Director of the KRMA.

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