Shelby County Board and Ed Flynn named in Declaratory Judgment lawsuit

Shelby Co. (ECWd) –

Mark Bennett, future Shelby County Board member who smoked current County Board Chairman Bruce Cannon in the primary election (77-23), has filed a Declaratory Judgment Complaint in Shelby County Circuit Court regarding legal fees the Board is trying to pay to a private attorney.  The attorney representing Bennett is Tom DeVore of Silver Lake Group ltd.

We have written extensively about the County Board’s illegal action to hire an attorney, and to date, Chairman Cannon has done nothing to resolve the matter and in fact has stated the bill should be paid, legal, or not, (article here).

Of special interest, in this case, is the fact the Shelby County State’s Attorney has not only been unable to provide any statutory authority for such a payment, but she has also asked the Attorney General for their opinion on the legality of the matter, (article here).

It appears most of the Board and the State’s Attorney would rather just pay the bill than follow the law.

Ed Flynn, the private attorney who is suing the County for payment of his invoices, cites Quantum Meruit in one of his claims.  Sadly, even the State’s Attorney has pointed to that as a concern that may be grounds for the county to lose their lawsuit against Flynn.  The SA points to a RESTORE CONSTRUCTION COMPANY, INC., et al., Appellees, v. THE BOARD OF EDUCATION OF PROVISO TOWNSHIP HIGH SCHOOLS DISTRICT 209 in support of her Quantum Meruit theory all while ignoring the very case law on the very point at hand, “public funds to private use for the performance of duties which the law imposed upon the State’s Attorney and for which he receives the salary fixed by law”.  The Restore Construction v. BOE case had nothing to do with paying for the work supposed to be performed by an elected official who receives a salary fixed by law.

The proper case to cite is the Ashton v. Cook case that destroys both the SA’s legal opinion and the argument of the private attorney, Ed Flynn.  In this particular case, the quantum meruit argument was raised and the Supreme Court made it crystal clear, and we have been citing this very case to the Board and in our articles for 6 months.

“To permit recovery of compensation in these cases on a quantum meruit would, in legal effect, give sanction to the giving of public funds to private use for the performance of duties which the law imposed upon the State’s Attorney and for which he receives the salary fixed by law.”

 “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. (Fergus v. Russel, 270 Ill. 304; Stevens v. Henry County, 218 Ill. 468; Hope v. City of Alton, 214 Ill. 102.) The contracts of employment under which appellants claim were ultra vires and void.”

Paragraph 19 of the complaint actually expresses the exact same language found in Ashton v. Cook.

“To permit recovery by Flynn or the Firm under the theory of quantum meruit, would in legal effect, give sanction to the giving of public funds to private use for the performance of duties which the law imposed upon the State’s Attorney and for which she receives a salary from the taxpayers fixed by law.”

Bennett’s lawsuit seeks the following:

WHEREFORE, Plaintiff, Mark Bennett, herein request that this court enter an Order:
A. Finding that The Resolution passed by the Board hiring Flynn to perform legal services was an act that was in excess of their authority;
B. Declaring the any contract between The Board and Flynn, or The Firm, is void ab initio, invalid and of no force and effect whatsoever since its inception;
C. Declaring quantum meruit does not allow for the payment of taxpayer funds to The Firm;
D. That the Comi grant such other and further relief as is just and proper.

We will predict the court will, in fact, confirm the Resolution passed and signed by Bruce Cannon was done in excess of their authority, which would make any alleged contract between the Board and Flynn or his firm void ab initio, invalid, and of no force and effect, that quantum meruit does not apply in a case where an elected officials duties were improperly contracted out, and possibly will order the return of every penny paid to Flynn under an improper resolution.

We urge Chairman Bruce Cannon to resign, State’s Attorney Gina Vonderheide to Resign, as well as every county Board member who is attempting to use taxpayer funds to pay for a private attorney in violation of the law.

The County Board is holding a regular meeting Wednesday morning at the Lions Club building at Forest Park, 9 am.  We encourage everyone to attend and be prepared to express your thoughts to the board on any matter of concern.

A copy of Bennett’s lawsuit can be downloaded at this link or viewed below.

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