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June 22, 2024

Shelby County / Rose Township – Reading The Law And Following It Is Better Than Having To Peel The Onion

By Kirk Allen & John Kraft

On August 9, 2023

Shelby Co. (ECWd) –

For the past thirteen years, we have spoken about the proverbial “onion” which is what we refer to local government being.  When an issue arises and people start actually looking into the matter it never fails there are multiple layers of problems, thus the peeling of the onion expression.

A recent quo warranto filing by the Shelby County State’s Attorney dealt with action taken by the Rose Township Board in the appointing of a person to the cemetery board.  That person was also a County Board member.  We covered the filing in this article.

Can a Township Board appoint people to a Township Cemetery Board? 

The answer is no, yet that is exactly what the Township Board of Rose Township did according to their minutes.

(60 ILCS 1/130-10) – Cemetery board of managers; appointment; powers; organization.
    (a) If a township owns or controls a cemetery lying within or without, or partly within and partly without, the territory of the township, the township collector may appoint a board of 3 persons who shall be known as the cemetery board of managers. Board members shall hold their office for a period of 2 years or until their successors are appointed.

Shelby County Townships do not have collectors so how is it that the board exercised a power not given to them?

Who has the power to appoint members to a Township Cemetery Board? 

 (60 ILCS 1/50-20)
    Sec. 50-20. Counties with no township collector.
    (a) No collector in counties under 100,000. In counties under township organization, having a population of less than 100,000, there shall be no township collector elected. The county collector shall be ex-officio township collector, and all the duties of the township collector shall devolve upon and be performed by the county collector.

Who is the County Collector?

The County Collector is the County Treasurer.

(55 ILCS 5/3-11003) Classification of funds. For the purpose of establishing a control over the withdrawal, in accordance with the provisions of this Division, of all county moneys deposited in any bank, savings and loan association, savings bank, or credit union, as hereinafter required, such moneys are hereby classified as follows:
    Class A. All taxes and special assessments received by the county treasurer in his capacity as ex officio county collector or ex officio town collector, and held by him pending distribution to the several governments or authorities entitled to receive the same, shall be known as “Class A” funds.

We understand the person holding the cemetery position has turned in a resignation.  If the photo posted by her son is a true and accurate copy, there are a few issues when it comes to what the courts have said about resignations. The posted resignation does not indicate the date of its effectiveness, it is not signed and was turned in to the Township rather than the appointing authority, the County Treasurer who is empowered by law to perform the duties of a township collector.

Another layer of the onion is identified in the January 2023, minutes as it relates to the retention of Dove and Dove to be the law firm for the Township.

What does the law say about a Township hiring legal counsel?

(60 ILCS 1/70-37)
    Sec. 70-37. Township attorney. The supervisor, with the advice and consent of the township board, may appoint a township attorney. The township attorney’s compensation shall be fixed as provided in Section 100-5.
(Source P.A. 87-708; 88-62; 88-360; 88-572, eff. 8-11-94; 88-670, eff. 12-2-94.)

Section 70 of the Township code outlines the specific powers of the Township Supervisor, and one such power is to appoint a township attorney.  Note that it does not say the board can motion and vote to approve the retention of a law firm. Nor does it say the Supervisor can retain a law firm.  The supervisor is the one who appoints a township attorney, with the advice and consent of the board.  That is not what the Township Board did.  Once a proper appointment is made, the compensation of that attorney is fixed as provided in the law, specifically section 100-5 of the Township code.

Any bets if sections 100-5 were complied with?

We sent a FOIA request to find out and we are going to go off past experience and assume it was not followed. We will update you when we get the response.

This is just 1 township that has multiple layers of the onion peeled back and exposes failures to follow the most basic laws in our local government of which all were identified in just 1 month’s set of meeting minutes. None of these items would have been identified had 1 action taken in violation of the law not been exposed.

We have encouraged elected officials for years to ask a simple question before ever taking any action.

Where in the law does it give me the power to do what I am about to do? 

Had the members of Rose Township asked that question they would have found the answers in the law, which you don’t have to be a lawyer to understand.

 

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7 Comments
  • Kathiann
    Posted at 11:05h, 10 August Reply

    So how many townships know nothing of this law? I would bet most township boards do appoint their own cemetery boards. Even extremely well run townships in our county appoint their own cemetery board….I am not disputing your information. I know you guys do your homework. I’m just saying I don’t know of a township board that doesn’t appoint that board.

  • Kathiann
    Posted at 11:08h, 10 August Reply

    This statement is on the TOI.org website regarding Casey Township: “The everyday operation of the Cemeteries are run by the Cemetery Board who is appointed by the Casey Township Supervisor and approved by the Town Board.”

    • John Kraft & Kirk Allen
      Posted at 06:52h, 11 August Reply

      That is actually a statement on the Casey Township website which is hosted by TOI. It is not a TOI statement.

      • Kathiann
        Posted at 13:23h, 12 August Reply

        Hey John, I didn’t mean to infer that it was a TOI statement, I was just pointing out that apparently Casey Township appoints their own cemetery board. Are all townships ignorant of the statute in this matter?

  • NMWTLS
    Posted at 21:19h, 10 August Reply

    TOI is nothing but a lobbyist group out to save their own jobs by making themselves (supposedly) invaluable and necessary to township governments. Check out their staff bios. They are so successful because so many elected township officials are more than happy to let somebody else tell them what their jobs are and how they should do them. The staff of T.O.I. are not “township officials” by any stretch of the imagination.

  • Kathiann
    Posted at 10:22h, 26 August Reply

    I have a question: I notice the statute uses the word “may’ as in ” the township collector may appoint a board of 3 persons who shall be known as the cemetery board of managers.” It seems as if it is like the Open Meetings Act where they “may” go into closed session for certain subjects, but they are not mandated to do so.. This wording strikes me as written in a permissive sense and I’m wondering if that is why the country treasurer does not appoint cemetery boards. It seems to me if it was a definite thing, that the word would be “shall” instead of “may.” Has there been any court cases affirming that there is no option being offered in the statute? Thanks for everything you guys do.

    • John Kraft & Kirk Allen
      Posted at 15:23h, 26 August Reply

      I read it as the cemetery board is optional. So, if they want, they “may” appoint a board.

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