Shelby County – Conflict of Interest – 101

Shelby Co. (ECWd) –

Shelby County State’s Attorney Ruth Woolery has requested a legal opinion from the Attorney General’s Opinions Bureau on the questions of conflict of interest. The basic questions raised:

“Is it a conflict of interest for the commander of a volunteer dive rescue team, under the oversight of the county board public safety committee, to also be an elected member of the county board, if that individual does not serve on the public safety committee?”

“Is there an inherent conflict of interest in serving as both the commander of the volunteer Shelby County Dive Team and as a member of the Shelby County Board?”

We must note several points in Woolery’s letter to the AG that appear to conflict with the official record regarding the Dive Team resolutions.  Claiming that the dive rescue team is under the oversight of the county board public safety committee falls short of the reality found in the actual resolution.  Several points in the resolution put the County Board in a position of certain oversight or control.

• The County Board approves the policies and procedures of the Dive Team
• The Dive Team Commander is appointed by the County Board Chairman with the advice and consent of the County Board.
• Shelby County Board will determine the direction and outcome of any suspension issued to the Dive Commander.
• The authority to suspend operations of the Shelby County Dive Team to ensure the health, safety and welfare of the citizens of Shelby County as well as the health, safety and welfare of the members of the Shelby County Dive Team, shall lie in the hands of the Shelby County Board and require a majority vote from the same to suspend operations.

The letter also indicates the dive team is a volunteer team and while the resolution was provided to the AG, the letter does not mention that there is a pay provision found in the resolution.

• “The amount of this payment is set at $20.00(Twenty Dollars) per member, per call out where aide or services by the team, are rendered. Training exercises, whether member attendance is mandatory, optional or volunteer, will have a payment of $10.00(Ten Dollars) paid to the individual members.”

That compensation is set by action of the County Board.

Other items not mentioned in her letter are the fact the Dive Commander submits budget information as well as claims for expenses, both which are under the control of the County Board because the budgets and claims require a vote by the board members, the Dive Commander being one if he takes his oath next week.

What has the Attorney General said about conflicts between two positions similar to the situation with the Shelby County Dive Team and its board-appointed dive commander?

“The common law doctrine of incompatibility of offices precludes simultaneous tenure in two public offices where the constitution or a statute specifically prohibits the occupant of either office from holding the other, or where the duties of the two offices conflict so that the holder of one cannot, in every instance, properly and faithfully perform all of the duties of the other. ( People ex rel. Fitzsimmons v. Swailes ( 1984), 101Ill. 2d 458, 465; People ex rel. Myers v. Haas ( 1908), 145 Ill. App. 283, 28,6.)” (AG letter I-01-025)

There is no prohibition found in the law or the constitution for a County Board member to also be a County Dive Commander so the second prong must be evaluated.  A simple way to evaluate that is to ask the question, do the duties of the two offices conflict so that the holder of one cannot, in every instance, properly and faithfully perform all of the duties of the other?  This is where many will focus on the person to answer the question rather than the legal standard set that focuses on the position, regardless of who holds it but by all means do not take our word for it.

“Indicia of public office include the creation of the position by law, the requirement of an oath or a bond, duties prescribed by law rather than contract or agreement ·and the continuous nature of the duties of the position without regard to the particular person who holds the position. Wargo v. Industrial Comm’n (1974), 58 Ill. 2d 234, 237; People v. Brady (1922), 302 Ill. 576, 582.” (AG letter I-01-025)

There is no question that a county board member holds a public office.  The determination of whether a County Board-appointed Dive Commander is a public officer requires an examination of the statutory provisions relating to that position. 

Unlike the Fire Protection District Act, the Water Rescue Act is very vague and makes no reference to positions within a Dive Team.  In short, there is no statutory mention of a Dive Commander being a public officer.  However, the legislative action taken by the County Board creates the position and provides key obligations to that position, much like a Fire Chief would have in a volunteer fire department.

Although the County Diver Commander’s duties are not fixed by statute, but by the County Board through the adoption of those policies and procedures, it appears, on balance, that a County Dive Commander is an officer of the Shelby County Dive Team and that the doctrine of incompatibility would therefore be applicable to the offices of County Board Member and County Dive Commander in our opinion. This opinion comes from the analysis found in the AG letter I-01-025 and I -93-103.

Additionally, the fact AG letters point to compensation and benefits playing a role in the analysis it appears clear there is at a minimum a common law conflict of interest with a County Board member being the County Dive Commander.  Compensation is set by the county board, and that compensation directly impacts the Dive Commander. The benefit of insurance coverage appears to play a role as well as that is also approved and paid for by the county board.  It is improper for any board member to be called to vote on a matter that directly affects benefits that they receive which includes compensation and insurance coverage paid by the county.

Woolery’s letter is dated October 10, 2024.  Considering we have never seen an actual opinion issued in under two years, we won’t hold our breath on this one.  We believe the answer to both her questions is a simple Yes.

See Rogers v. Village of Tinley Park for more information on the doctrine of incompatibility, and the elements of the doctrine of common law incompatibility.

For those who may say he could simply abstain from voting on conflicting matters, that is not an option in county government outside the very strict provisions of the Public Officers Prohibited Activities Act.

“As observed by our Supreme Court in Jones v. MacDonald, supra:  It is no answer to say that the conflict in duties outlined above may never in fact arise. * * * Nor is it an answer to say that if a conflict should arise, the incumbent may omit to perform one of the incompatible roles. The doctrine was designed to avoid the necessity for that choice. [33 N.J. 132, 138, 162 A.2d 817, 820.]“