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December 4, 2022

Shelby County State’s Attorney -Legal Opinion?

By Kirk Allen & John Kraft

On June 28, 2020

Shelby Co. (ECWd) –

The Shelby County State’s Attorney, Gina Vonderheide, provided this legal opinion, if you can call it that, to the Shelby County Treasurer regarding the payment being withheld for the private law firm hired illegally by the county board.

The legal opinion reads more like an acquiescence than an opinion, and even points to what appears to be a justification to pay the bill based on overall cost rather than the law.

The SA confirms, there is no statute supporting the obligation of the payment.  The opinion then points to two court cases, here and here, that support a quantum meruit claim, which is what the law firm has alleged in their complaint.  How convenient, or incompetent, for the SA to avoid any case law directly on point in this matter, specifically Ashton v. Cook.

  • “No provision is made in the law which authorizes a board to employ private counsel in collection of delinquent taxes under the emergency pleaded, even though the State’s Attorney approves the contracts as to form and gives his silent acquiescence to the procedure adopted. His consent cannot operate to supply the board with a power which the legislature has seen fit to withhold.
  • “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.)”
  • Appellants also contend that they should be permitted to recover on a quantum meruit. Such a recovery is founded on the implied promise of the recipient of services or material to pay for something which he has received that is of value to him. Such principle can have no application in this case for the reason that the contracts were wholly void and created no rights and imposed no obligations. They come within the principle of law that where the legislature has withheld a power it is the same as though the exercise of the power was prohibited by law. (Continental Ill. Nat. Bank and Trust Co. v. Peoples Trust and Savings Bank, 366 Ill. 366.)
  • 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.

In closing out her letter, the State’s Attorney states:  “then we are paying additional taxpayer dollars out that likely would exceed what we are being sued for, so it could be a net loss even if we prevail in the lawsuit”

Does she not realize the county has been paying additional taxpayer dollars all these years for another attorney to do the job she was elected and paid to do?  Where was the concern for taxpayer dollars all those years?  While we understand what she is saying, it’s sad that she fails to focus on the actual law on such a payment.  This is not private litigation where parties are free to settle a case as they see fit. This is a public body bound by the laws of our state and there is no provision to spend taxpayer money in the fashion being suggested, for any reason.

We urge the county board to seek the court’s appointment of legal counsel for them as it’s clear the State’s Attorney is more focused on losing this case than winning it.  Additionally, since the State’s Attorney is a fact witness in this matter she should have already recused herself and taken care of ensuring the county board had proper legal counsel appointed.  The law outlines how that should happen at no further expense to the taxpayer, a point she failed to address in her legal opinion.

This affidavit has already been filed by the Treasurer seeking the court’s action to appoint legal counsel on her behalf due to the admitted conflict the State’s Attorney has in this case.  It’s a sad day when a county official has to take these steps that should have been taken by the State’s Attorney.

We will update with future articles as this matter progresses through the courts.

SA-opinoin-on-legal-bill

 

 

 

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1 Comment
  • PK
    Posted at 12:55h, 29 June

    Before the UCCI got involved, what constituted proper hiring of a special assistant to her office? What constitutes proper hiring of an assistant to her office thereafter? Either then or now the “cost more” rationale is troubling as it implies there was/is no cost to others for the county board to have willfully operated outside the counties code and framework of law.

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