The LITH Sanitary District’s Case – Part 1

No consideration was given by Judge Thomas Meyer to the brief filed the day he entered an injunction preventing the Lake in the Hills Sanitary District from purchasing Kane County land.

No harm, no foul, I guess, because the District did not proposed to buy before the Temporary Restraining Order would expired

Lake in the Hills Sanitary District treatment facility.

Nevertheless, Derke Price spent his weekend preparing a reply to the late Friday afternoon filing from McHenry County State’s Attorney Patrick Kenneally’s office.

So, let’s take a look at Price’s presentation of facts and arguments, because they will certainly show up once a full-blown hearing takes place in mid-August.

The brief starts with the fact that since April 27, 2017, the Sanitary District has been located in both McHenry and Kane Counties.

He notes that Trustee Terry Easler has a term that runs until May 1, 2019, while Shelby Key’s term expired May 1, 2017.  The third Trustee, David McPhee, who resigned to take a seat on the Lake in the Hills Village Board, has a term that would have expired May 1, 2018.

All served until their terms expire or “until their successors are elected and qualified.”

State statute (the one I wrote) requires that trustees of multi-county districts are appointed by legislators whose districts have any part of such a sanitary district’s territory.

No action has been taken by State Senators Karen McConnaughay and Dan McConchie and State Representatives David McSweeney and Allen Skillicorn.

When McPhee resigned in January, 2017, annexation into Kane County had not occurred.

Therefore, McHenry County Board Chairman Jack Franks had the authority to appoint his replacement.

But, as the filing points out, “Franks took no action whatsoever to fill McPhee’s vacancy within the required 60 days, nor did he do so at any time prior to April 27, 2017, when the District’s boundaries expanded into Kane County.”

That being the case, attorney Price argues that Franks lost his appointment power.

He further notes that McPhee still continues to hold over as a board member under the statute because his successor has not be duly appointed and qualified.”

The annexation along Square Barn Road into Kane County was “the result of over three years of planning following the expiration of a corporate boundary agreement between the District and the Village of Huntley.

The annexation was “in anticipation of the annexation of an additional 13+ acres in Kane County,” which is now under a real estate purchase contract.

{That land is to be used for a lift station to serve development in northern Kane County.]

The District has a capacity of treating 4,500,000 gallons a day, but its current load is 3,350,000 gallons per day from its 11,000 accounts.

On June 15th, the District’s attorney wrote the four legislators requesting they appoint the expired term and the vacant position.  A copy of the letter was sent to Franks.

The holdover officers continue to serve because “there has been no action” by the legislators.

= = = = =
Here is Part 1.

Here is Part 2.

Here is Part 3.


The LITH Sanitary District’s Case – Part 1 — 6 Comments

  1. This case is illustrative of the condition of which Illinois taxpayers should be keenly aware:

    There is no practical enforcement policy for Illinois law, County or Municipal Code, or any other policy created by elected officials past or present.

    Consider for an example the alleged patronage hirings in late 2016 by newly elected County Board Chair, allegedly in violation of County Code and established policy including Salary Administration Policy:

    Because the County Board has refused to act, or been prevented from acting, citizens look for tangential solutions to what is considered to be another example of profligate waste of public funds by an official behaving without regard to established laws and standards to which other taxpayers are strictly held.

    The original legal premise was that 55 ILCS 5/5-1013 (Neglect of Duty (by County Board Member…the sum of $200, to be recovered in a civil action”) had some enforcement mechanism.

    Delving into convoluted Illinois law (Tort Immunity of elected officials, for example) raises competing standards.

    (Not surprising, having been informed by IL States Atty, IL Atty Genl, ISBE counsel, and Regional Superintendent Schermerhorn that none of them have authority to enforce elected school board officials’ compliance with School Code, and to their knowledge no agency under Illinois law has any such power.)

    What seems to be the outcome: County Board Members may SELECTIVELY COMPLY with County Code in any way they see fit, without recourse available to individual taxpayer citizens.

    However, if County Board Members fail to enforce County Code in hiring practices, any job applicant in 2016 who was discriminated against by not being given similar consideration of:

    (in this case of 2 alleged improper 2016 patronage hirings)
    R-200210-12-196 waiver, R-200305-12-113 waiver, R-200802-12-058 waiver
    Position Reclassification Budget Directive
    Salary Administration Policy (5 or more sections))

    has a cause of action which may exceed the $200 per incident per Board Member liability cap under 55 ILCS 5/5-1013 Neglect of Duty.

    Who is to say that those applicants didn’t receive SELECTIVE COMPLIANCE with COUNTY CODE due to reasons forbidden under federal anti-discrimination policies?

    Furthermore, any McHenry County citizen forced to pay a fine or penalty to the County during 2016 for a County Code violation would arguably have standing to press suit, in that they were not made privy to special exemptions (selective enforcement of code) granted in the act of 2 alleged patronage hirings in violation of County Code and policies.

    So rather than pursuing neglect of duty lawsuit against individual Board Members for damages limited to $200/member/incident, it appears the only recourse which ordinary taxpaying citizens have against patronage hiring at our expense is to seek out individuals with standing (overlooked job applicants, any citizen who paid a fine to the County or was disadvantaged by strict rather than selective enforcement of County Code) to bring discrimination suits against McHenry County Board and its members, and these individuals would have much larger potential damages to claim.

    This case seems like a good opportunity for judicial review up to the highest levels, to develop standards for all of Illinois.

    Citizen taxpayers should be made aware that at present they have no mechanism available to enforce compliance with Illinois law by elected officials, and if they would like that changed, citizens need to establish case law or other law to do so.

    Now loow at the case at hand, and what it means and what it accomplishes.

    A ‘quo Warrento’ suit might be applied to this example of alleged patronage hiring in violation of County Code and established hiring policy.

    from wikipedia:

    Quo warranto (Medieval Latin for “by what warrant?”) is a prerogative writ requiring the person to whom it is directed to show what authority they have for exercising some right or power (or “franchise”) they claim to hold.

    In the United States today, quo warranto usually arises in a civil case as a plaintiff’s claim (and thus a “cause of action” instead of a writ) that some governmental[citation needed] or corporate official was not validly elected to that office or is wrongfully exercising powers beyond (or ultra vires) those authorized by statute or by the corporation’s charter.

    Can county board chair prove authority to bypass or outright violate County Code in hiring practices?

    This suit could be pressed by County Board members. But none of them have done so.

    But we come back to the beginning: ordinary taxpayers in Illinois seem to have no available mechanism to prevent laws, Codes, and policies from being SELECTIVELY ENFORCED by humans who need to provide no other reason than that isn’t politically expedient for them to do so.

  2. The Edgar County Watchdog blog is filled with instances of local units of government not following the law.

    They two people behind the blog routinely file FOIA appeals and open meeting act violations with the State Attorney General’s Public Access division, and sue local units of government.

    That is what is required in many instances to force local units of government to follow the law.

    Some local citizen has to read and interpret the law and take action.

  3. But fail to approve a Prevailing Wage Resolution and the rats come out of the closet!

    The rat is a great mascot for Local 150.

  4. We should replace the goofball skiing in the middle of July for that inflatable rat in the screen picture of our Mchenry county sunshine blog. It better represents the spirit of compassionate conservatism and some (not all, of course) of our commenters. 2018, please come in…tic, tock, tic, tock…

  5. Mark? I think you’re missing the point.

    There is NO accountabiity.

    NO punishment for not following the law.

    So why should anyone follow it?

    Get the point, now?

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