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June 22, 2024

Improper Blending/Comingling of Public Body and Nonprofit (Part 1) –

By John Kraft & Kirk Allen

On April 11, 2023

Madison County, Ill. – Veterans Assistance Commission (ECWd) –

This two-part article explains our concern that the public body of the Veterans Assistance Commission of Madison County is being  “blended” or comingled with a nonexistent nonprofit (searches of the IRS Charity Database yield no results) of the same name and used to perpetuate the false notion that an employee of the public body can chair a meeting of the public body while prohibiting actual members of the public body from chairing their own meetings.

The “Veterans Assistance Commission of Madison County” (“VACMC”), a public body, also has an alleged nonprofit named the “Veterans Assistance Commission of Madison County, Inc.”

Somewhere during the past several years, and with the assistance and various opinions of the VACMC attorney, Thomas W. Burkart (there are conflicting statements as to whether he is the attorney for the public body or for the nonprofit), the VACMC has somehow “blended” these two separate entities together and are improperly comingling the duties and responsibilities of the entities into one entity – it is unclear if the one entity is the public body or the nonprofit. Incidentally, a search on the IRS website for the nonprofit’s FEIN came up with no results.

Earlier this year, we reported on an instance where the Superintendent, an employee, was permitted to vote on Motions during a meeting of the entire Commission. Another article focused on the Superintendent voting on Motion during a meeting of the “Executive Board” (which does not exist and never did exist as part of the public body). The meeting minutes of the executive board meeting do not reflect the Superintendent votes that he actually cast during the meeting.

The attorney even falsely stated that the “Executive Board” could pass resolutions and ordinances that would bind the hands of the entire commission, and we wrote how that statement was false, and pointed out the resolution hiring the attorney and the new contract for the superintendent were invalid for that reason. They must have been approved by the entire commission, not a subcommittee of the commission. However, if the intent was to pass resolutions and contracts as board members of the alleged “nonprofit” they could do as they pleased but should not expend any public funds on those resolutions or contracts.

The most recent issue was during the VACMC (the public body) meeting of the entire commission on March 15, 2023, where the Superintendent told elected VACMC board officers that they were not conducting the meeting, he, the Superintendent was, and he had an opinion from the attorney stating he should run the meeting.

The Attorney’s Opinion Letter

The “meeting” held on March 15, 2023, was a meeting of the “full commission” (the public body) as described in the MVAA.

From the very first section of the opinion, it is clear the opinion was provided to the alleged “nonprofit” since the public body’s name does not include the designation of “Inc.” at the end. It is addressed to Bradley Lavite, Superintendent, however, there is no such position within the nonprofit. The mailing address used is the address of the public body – the Madison County Administration Building.

The “opinion” went downhill from there.

PARAGRAPH – 1

The first paragraph mentions Attorney Burkart reviewing the Military Veterans Assistance Act (“MVAA”) and the NFP Corporations Act (“NFPCA”) and relevant case law on the subject of who should chair “membership” meetings. He also reviewed Robert’s Rules of Order and the 2017 version of the VACMC’s bylaws, finding that the Superintendent should chair the “membership” meetings of the VACMC.

I have reviewed the Military Veterans Assistance Act (MVAA), the NFP Corporations Act (NFPCA) and relevant case law on the above issue. I have also reviewed Robert’s Rules of Order, and the 2017 version of the VACMC’s bylaws. For the following reasons, it is my opinion that it is the Superintendent, that should chair the membership meetings of the VACMC.

This is where both the attorney and the Superintendent are confusing the Delegates and Alternates of the VACMC public body, the entity which held the March 15, 2023, meeting of the full commission. We believe this is on purpose to further confuse the delegates and alternates, who tend to vote and approve things put in front of them if it is too confusing to figure out prior to the vote. When questions are asked of the Superintendent, the answer to the question asked is generally not provided, but several minutes of gibberish is provided which confuses the commission.

For the Public Body (the entity which held the March 15, 2023, meeting): The Military Veterans Assistance Act and Robert’s Rules of Order are what should have been looked at by the attorney. The bylaws to a certain extent, but bylaws cannot circumvent state law.

For the nonprofit: The NFP Corporations Act and Roberts Rules of Order are what the attorney should have looked at.

The Bylaws:  The bylaws on the VACMC website indicate they are for the nonprofit and not the public body since they are bylaws for the corporation as indicated on the cover page, and as such, cannot be used for the public body. These bylaws should be immediately discarded as invalid due to their actual contradictions with state law. The alleged bylaws also appear to take on duties of the public body, which the nonprofit is not permitted to do.

Robert’s Rules of Order, 12th Edition:  Section 47 describes the officers and duties of those officers – but should be used only to the extent they are not violative of state law. Essentially (See paragraph 47:11), the Chairman or President presides over meetings, and in the Chairman or President’s absence, the vice-chairman or vice-president presides over the meetings.

VACMC Bylaws of 2017:  Article IV, Section 1 spells out who the “members” of the commission are. And they are the Delegates and Alternates as named by each Veteran Service Organization in Madison County. There are no other “members.”

PARAGRAPH – 2

Both the bylaws and §10 of the MVAA vest the Superintendent with the executive powers of the VAC. In Kloeppel v. Champaign County Board, 2022 IL 127997 addressed the statutorily defined role of an executive. According to the most common legal definitions, the Chief Executive Officer (CEO) is the highest-ranking executive of an organization and s/he directs the day-to-day operations. Thus, by virtue of the statute, absent a restriction in the bylaws, the Superintendent determines how the meetings of the organization will be conducted.”

According to the MVAA, the powers of the Superintendent are subject to:

  • Joint control of monies and supplies: Section 9(b) of the MVAA which states that both the commission and Superintendent shall have oversite of all monies and supplies distributed for the benefit of military veterans and their families.
  • As directed by the Commission: Section 10(a) of the MVAA which vests the executive powers of the commission in its Superintendent. However, Section 10(d) firmly places the Superintendent “under the direction of the commission.”
  • Under rules formed by the Commission: Section 10(h) of the MVAA states that “subject to the rules formulated by the Commission” a Superintendent may hire VSOs and other employees.

The Kloeppel case addressed the statutorily defined role of an elected county executive, which is an entirely different animal than a Superintendent, or employee, of a VAC. This tends to negate any reliance on Kloeppel for guidance on what a Superintendent can or cannot do. An “elected county executive” has statutory powers and is not subject to, nor under the direction of, a county board. On the other hand, a VAC Superintendent is a hired employee of the Commission and is subject to and under the direction of the Commission.

Continued in (PART 2).

VAC_Opinion Letter_20230315

 

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