Shelby County Unresearched Legal Opinions – Will They Ever Learn?

Shelby Co., Ill. (ECWd) –

For years we have taken the position that there are answers to every local government question a person might have if they are willing to do the work to find it.  We have also said, many times, that attorneys who provide snap opinions on the fly or fail to substantiate their opinions with actual statutes and case law tend to make mistakes, thus this article.

Back in September of 2021, under the legal direction of former State’s Attorney Nichole Kroncke, the county board adopted this resolution. This was the board’s attempt to remove payroll from the treasurer’s office after her exposing massive payroll malfeasance in the Sheriff’s office and others (no we don’t hate law enforcement). During that process, former county board member Dereck Pearcy specifically asked what statutory authority allows the county or the treasurer to outsource payroll. Rather than citing any such statute, the State’s Attorney read from the resolution which failed to answer the question.

A key point in the resolution drafted by the State’s Attorney is this:

WHEREAS, pursuant to 55 ILCS 5/5-1087, a county board may impose additional duties, powers or functions upon county officers;

Had Kroncke done the proper research, it may have avoided the public embarrassment at the January 2022 meeting when Pearcy read some relevant information from AG opinions and case law related to county board powers, or limits thereof.  His comments can be viewed at this link.  Note the AG numbers he references in relation to those provided in this article. We also note that when we published our article on this matter, we said we had not found any supporting case law or AG opinions indicating a county board has the power to do what they were doing, forcing an elected officeholder to outsource operations of her office.

Fast forward to December 31, 2024

Shelby County Treasurer Erica Firnhaber sent an email with two attachments to the entire county board, the county clerk, and the State’s Attorney.

“County Board Members,

I have attached two AG opinions plus an opinion issued by Giffin Winning Cohen & Bodewes, P.C. to UCCI and passed on to member counties in 2017. 

Upon research into the duties of the county treasurer it has become abundantly clear that this office is not responsible for payroll processing and that duty cannot be delegated to this office.  Due to this revelation, this office will not process payroll after January 31, 2025 payroll and those duties will have to be taken over by the County Clerk who has the statutory responsibility to process payroll.  If she so chooses to outsource, then so be it. (emphasis added)

Thank you,”

In less than 30 minutes, Board Member Sonny Ross sent a response to the entire county board, department heads, and the clerk.  While we understand the points raised by Ross, the very first sentence in the email is not accurate.

“The Shelby County Treasurer, Erica Firnhaber, has made a declaration today the office of Shelby County Treasurer will no longer process payroll moving forward”

The declaration by the treasurer was twofold, payroll is a duty of the County Clerk, and she will not process payroll “after January 31, 2025″, which is much different than stating she will no longer process payroll moving forward.

The AG opinions and legal opinions the treasurer provided are crystal clear, payroll is a statutory duty of the County Clerk.  While all of it is very interesting reading, it was Pearcy who cited some of these very opinions two years ago. Had the prior legal counsel properly researched the limitations of county boards it might have been discovered then that the entire issue of payroll being done out of the treasurer’s office was done in contradiction to long-established AG opinions on the law.

The current State’s Attorney, the same one who failed to properly redact judge’s signatures and other private information in FOIA response, issued this memorandum on county payroll in July of 2024.

“While there is no one office that is statutorily responsible for the processing of payroll, the treasurer is responsible for the disbursement of county funds. As such, that office is the most appropriate place for payroll to be processed outside of hiring a separate “payroll clerk” or outsourcing the payroll responsibilities of the county. And, from what I understand, the treasurer’s office has been responsible for processing the county’s payroll for over 40 years.” (emphasis added)

Not only is that opinion wrong according to the numerous AG opinions it also points to one of the oldest positions we routinely hear from local government, “it has always been done that way“.  Even County Chairman Tad Mayhall could not resist pointing to how long payroll has been in the treasurer’s office in his communication to the treasurer.

“You stated in your email to the board and in a response to Mr. Ross that payroll cannot be delegated to you. I don’t have an exact date, but since my time on the board, payroll wasn’t delegated to you, and it has likely been in that office for a few decades” (emphasis added)

We must ask, if it’s wrong does it matter how long it’s been done wrong? How about an approach of, you’re right, this is wrong, and we need to fix it, no matter how long it has been done wrong.

The United Counties Council of Illinois we think expressed the logic quite clearly why laws should be followed rather than following a legal opinion that is unresearched and advised the treasure office is the most appropriate place for payroll.

“This office has previously and consistently opined that the delegation of payroll processing from the county clerk to the county treasurer is not recommended even if the parties were to acquiesce to such an arrangement. Indeed, we have previously advised against the delegation of any duty that is imposed on a county officer by statute as doing so would remove the safeguards that; the legislature has put in place to protect against potential fraud and malfeasance with regard to the expenditure of public funds.” (emphasis added)

We believe the UCCI quote above could easily be applied to the issue of a department head in the county also being a county board member. Allowing it would remove the safeguards that; the legislature has put in place to protect against potential fraud and malfeasance with regard to the expenditure of public funds.

The State’s Attorney goes on to make another legal opinion whopper in her memorandum.

“I would only point out that the refusal of the Treasurer to perform any of the duties assigned to her by the County Board is a violation of Illinois law subject to financial penalties and removal”.

Where are the penalties for those responsible for assigning duties to the treasure that belong to another office, which they are not allowed to do?  Better yet, what recourse do people have when their legal counsel continues to give advice inconsistent with the law, AG opinions, and case law?

We contacted the county clerk to find out what her plans were on the matter and have not received a response at the time of publication.

We have confirmed she has requested the county board to take the appropriate steps on the matter and it appears she agrees with the information provided by the treasurer.

“The County Clerk’s office request that the board seek another option for the processing of payroll.   Please allow this to serve as my official request pursuant to the AG opinion of Roland Burris from 1991 and the opinion dated 1976.  Elections are much more detailed and involved then they were in 1991.  My staff and I are busy with the statutory duties we currently handle.  Thank you!!”

It should be noted that the treasurer did in fact insist on not outsourcing payroll in the past for three reasons.  She believed at the time it was her statutory duty since her office was where payroll was when she got elected, the county board had no power to force her to outsource a duty she believed was hers, and it would be the taxpayers on the hook for more expenses that were not needed.

After more recent issues with payroll processing, including pay raises with no supporting documentation, and claims of comp time without supporting documentation, the treasure searched for legal options.   Her search resulted in the realization she is not obligated to perform duties that belong to another elected office.  That being the case, along with the fact of 6 years of exposing payroll malfeasance with little to no accountability, she will no longer perform those duties after January 31, 2025.

We suspect the next local propaganda will be the cost attributed to the clerk’s option to outsource payroll is the treasurer’s fault. Had the treasurer kept her mouth shut as a past board member told her to do no one would know how screwed up some things are in Shelby County.