With Nothing in the Budget, Was Miller Sick Payment Legit?

Written by Illinois Leaks, this is published with permission:

Algonquin Township Road District – Legal opinion points to sick pay not legitimate

McHenry Co. (ECWd) –We recently wrote this article about Attorney Gooch confirming the sick pay to Bob Miller from the Road & Bridge fund was erroneous.

Jim Kelly

Just about the time we thought the final disclosure on the sick pay where we would share the Illinois Administrative rules on sick leave had arrived, up jumped another legal opinion that will put that article on hold just a few more days.

James Kelly provided a legal opinion to the Board of Trustees after being questioned about the street sweeper purchase in the May 2017 Board meeting.

Although I had read his response several times, today it jumped out at me like a lion.

“Atty Kelly said that the board’s authority is to audit bills, but if an expense is in the budget, it is a legitimate expense.“

Once again we must point out why this statement is so meaningful to the taxpayers of Algonquin Township.

Bob Miller explaining the value of township government to the County’s Township Consolidation Task Force.

Kelly’s legal opinion and advice to the Board of Trustees was that an expense in the budget is legitimate, which must also mean any expenditure, not in the budget is not legitimate, as you can’t have it both ways.

That being the case, how is Bob Miller’s sick pay be legitimate when it was not in the budget Mr. Kelly?

Attorneys can be wrong, and in many cases are wrong, but never challenged, as we have proven over the years.

Kelly contends if an expense is in the budget, it is a legitimate expense.

That is not true.

What he should have said is that if it is in the budget, and is a legitimate road district expense, then it is legitimate bill before the board.

On an unrelated matter to sick leave, some more Kelly related matters have popped up.

Reading Kelly’s bio on his website he outlined that he “advised the County Board on parliamentary procedures and acted as the Board Parliamentarian.”

For a guy that provides parliamentarian advise, may we suggest reading up on some case law on abstentions by elected officials, which are much different than those in the private sector?

Dan Shea

You will note about the 11-minute mark of the video from the last regular meeting, Board member Shea begins discussing a payment on the table for a vote to the Historical Society, which he is a sitting Board member of.

Kelly instructs him to not discuss if he is abstaining.

Sadly, there is no legal way for board member Shea to abstain from performing his elected duties without express statutory instruction on such an abstention.

If a quorum is present, municipal legislators cannot avoid their voting responsibilities by refusing to vote when present at a meeting. (See Launtz v. People ex rel. Sullivan (1885), 113 Ill. 137; see also People ex rel. Anderson v. Chicago & North Western Ry. Co. (1947), 396 Ill. 466.) (Known as the Prosser Rule) 

You would think a claimed parliamentarian advisor and local government attorney would know that?

A simple question elected officials should ask themselves before voting on matters is this:

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

You will find clear instructions on abstentions for conflicts in places like the Township Code, Municipal Code, Fire Protection District Act, and other local government state laws.

Those instructions are specific and using statutory construction we know that an abstention outside those provisions, as was allowed at the last meeting, is not proper.

Is it time for Algonquin Township to start shopping for a new attorney?

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With Nothing in the Budget, Was Miller Sick Payment Legit? — 7 Comments

  1. I think that the payout to Miller for unused sick leave was a total scam, but the line of reasoning used in that article fails Logic 101.

    Kelly argued that if an expense is in the budget, it is a legitimate expense.

    You cannot deduce from that argument that any expense not in the budget is not legitimate.

    There is a difference between sufficient and necessary.

    If I have $50 in my pocket, I can buy a case of domestic beer – $50 is sufficient to pay for a case.

    If I don’t have $50 in my pocket, I might or might not be able to buy a case of domestic beer – it is only necessary to have $20 to pay for a case.

  2. Billy Bob? You are presupposing that the statutes as written are something that might follow logic. Do you really want to go there?

  3. Jim Kelly is the same attorney that misguided the Grafton Township Board some years ago and convinced the Board they could build a new Township office building without approval of the township voters.

    We all know how that turned out.

    How does this guy stay in business.

  4. Some might presuppose that the Township section of the law is just a little muddled, allowing persons to find what they want in the law (or not find it) so that it is hard to prosecute under that statute, especially when the burden at trial would be beyond a reasonable doubt.

  5. If Billy Bob is correct. That would also mean that if Gasser’s legal bills exceed $150,000.00 this year they will be paid.

    Even though the Trustee’s reduced his budget.

  6. I think not. Where the law is silent provision is prohibited! It is a basic fundamental understanding of law.

  7. I don’t know how you came to that conclusion, MM.

    I actually agree with the Watchdogs about the Miller sick leave payout – I think it was legally and ethically dubious.

    I was was simply making the observation that some of the reasoning that they employed in this article was logically flawed.

    Kelly took the position that any budgeted expense is legit.

    That may or may not be true, but contrary to what the Wachdogs claimed in the article, it doesn’t logically preclude the possibility that a non-budgeted expense could also be legit.

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