Legal Q & A. Firefighters as Public Officials. By Roger Huebner, General Counsel, IML Jerry Zarley, Paralegal, IML.

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1 Legal Q & A Firefighters as Public Officials By Roger Huebner, General Counsel, IML Jerry Zarley, Paralegal, IML (November 2005) This monthly column examines issues of general concern to municipal officers. It is not meant to provide legal advice and is not a substitute for consulting with your municipal attorney. As always, when confronted with a legal question, contact your municipal attorney as certain unique circumstances may alter any conclusions reached herein. The General Assembly approved House Bill 1338 by a large vote in the House (116 0), and a close vote in the Senate ( ) allowing members of the fire department or fire protection district to run for, and if elected, serve in a public office. Governor Blagojevich approved the measure creating Public Act , effective July 25, 2005, which adds Section 12 to the Local Governmental Employees Political Rights Act. 1 Q: Does Public Act conflict with various longstanding existing statutes and case law creating an incompatibility of office and a conflict of interest? A: Public Act conflicts with a variety of well-settled common and statutory laws, such as those relating to holding other offices and interests in contracts. Public Act added a Section 12 to the Local Governmental Employees Political Rights Act, and provides as follows: 12. Elective and appointed office. A member of any fire department or fire protection district may: (1) be a candidate for elective public office and serve in that public office if elected; (2) be appointed to any public office and serve in that public office if appointed; and (3) as long as the member is not in uniform and not on duty, solicit votes and campaign funds and challenge voters for the public office for which the member is a candidate. (Emphasis added). Clearly, the broad language of Public Act allows firefighters to run for and become the holder of any elected or appointed office, including that of mayor or council/board member of the municipality in which the firefighter is employed. In effect, a firefighter that becomes a mayor or council/board member also becomes his or her own employer. Therefore, Public Act is in contradiction with the well-settled statutes and common law standards that are intended to prohibit incompatible office holding and conflicts of interests among local public officials.

2 First, Public Act violates the statutory prohibitions of public officials holding other offices and the common law doctrine of incompatibility of offices. Section 2 of the Public Officer Prohibited Activities Act (the Corrupt Practices Act) provides: No alderman of any city, or member of the board of trustees of any village, during the term of office for which he or she is elected, may accept, be appointed to, or hold any office by the appointment of the mayor or president of the board of trustees, unless the alderman or board member is granted a leave of absence from such office, or unless he or she first resigns from the office of alderman or member of the board of trustees, or unless the holding of another office is authorized by law. The alderman or board member may, however, serve as a volunteer fireman and receive compensation for that service. Any appointment in violation of this Section is void. Nothing in this Act shall be construed to prohibit an elected municipal official from holding elected office in another unit of local government as long as there is no contractual relationship between the municipality and the other unit of local government. This amendatory Act of 1995 is declarative of existing law and is not a new enactment. 2 In addition, The Illinois Municipal Code prohibits all elected and appointed officials from holding other offices. Section provides: Holding other offices. A mayor, president, alderman, trustee, clerk, or treasurer shall not hold any other office under the municipal government during the term of that office, except when the officer is granted a leave of absence from that office or except as otherwise provided in Sections and Moreover, an officer may serve as a volunteer fireman and receive compensation for that service. 3 An incompatibility of office may occur in a variety of combinations. However, an incompatibility between two offices clearly occurs when one person holds two positions and the duties of those positions conflict with one another. 4 The incompatibility of office doctrine provides that two public offices are incompatible under the common law when the written law of a state specifically prohibits the occupant of either one of the offices in question from holding the other and, also, where the duties of either office are such that the holder of the office cannot in every instance, properly and fully, faithfully perform all the duties of the other office. 5 Because of the statutory responsibilities of the corporate authorities of municipalities to oversee their respective fire departments and their employees, Public Act violates the historical intent of prohibiting the incompatible holding of two offices at one time. The corporate authorities, of every municipality that employs firefighters, has the statutory authority to control the conditions of the employment and discipline of its firefighters even if the municipality has a board of fire and police commissioners. For instance, the corporate authorities have the statutory authority to create and operate a fire department. 6 This authority includes the power to fix and regulate salaries of firefighters. 7 In addition, the corporate authorities have the statutory authority to levy taxes 8 and to increase the rates of tax levies 9 for

3 the purpose of fire protection within the municipality. Finally, the corporate authorities can regulate the relationship between itself and its employees 10 because municipalities have the power to regulate the conduct of their employees for their own benefit and for the benefit of effective administration of municipalities business. 11 In municipalities that have a board of fire and police commissioners, the corporate authorities have responsibilities over the board of fire and police commissioners. The Mayor, with the advice and consent of the board/council, appoints the members of the board. 12 The attorney for the board is the attorney or corporation counsel of the municipality 13 which is appointed by the Mayor, with the advice and consent of the board/council. 14 Even though a municipality has a board of fire and police commissioners, its corporate authorities still control the salaries and some of the conditions of the employment of firefighters. 15 Thus, the duties of a Mayor or council/board member seriously conflict with a firefighter position. The doctrine of incompatibility of office also applies to municipal employees as a member of the same municipality s corporate authorities because the firefighter position is subordinate to the firefighter s position as a public official. For example, in Rogers v. Village of Tinley Park, 16 the plaintiff filed an action for declaratory judgment to determine his right to serve as an elected village trustee of defendant, Village of Tinley Park, while also serving as a police officer. The Village contended that the positions of village trustee and police officer were incompatible and that plaintiff's acceptance of the position of village trustee automatically resulted in his resignation as a police officer. Ultimately, the appellate court determined that the simultaneous holding of the offices of village trustee and police officer by the same individual and within the same municipality was illegally incompatible because the police officer position was subordinate to the village trustee position. It is clear that a police officer and a firefighter are in similar positions as municipal employees. Therefore, by comparison, the simultaneous holding of the offices of trustee/alderman and firefighter with the same municipality would be incompatible. Public Act also violates the well-settled statutory rules prohibiting interests in contracts among public officials. Section 3 of the Corrupt Practices Act provides: (a) No person holding any office, either by election or appointment under the laws or Constitution of this State, may be in any manner financially interested directly in his own name or indirectly in the name of any other person, association, trust, or corporation, in any contract or the performance of any work in the making or letting of which such officer may be called upon to act or vote. No such officer may represent, either as agent or otherwise, any person, association, trust, or corporation, with respect to any application or bid for any contract or work in regard to which such officer may be called upon to vote.... This Section shall not apply to any person serving on an advisory panel or commission or to any director serving on a hospital district board as provided under subsection (a-5) of Section 13 of the Hospital District Law. 17 Section of the Illinois Municipal Code provides:

4 (a) A municipal officer shall not be financially interested directly in the officer's own name or indirectly in the name of any other person, association, trust, or corporation, in any contract, work, or business of the municipality or in the sale of any article whenever the expense, price, or consideration of the contract, work, business, or sale is paid either from the treasury or by an assessment levied by statute or ordinance. 18 As noted, a firefighter is an employee of a municipality. The corporate authorities of that municipality (which includes the Mayor and council/board members) are the head of that municipality and they directly and indirectly control the conditions of a firefighter s employment and discipline. Therefore, not only are the simultaneous holdings of the two positions incompatible, they also create a conflict of interest because the firefighter, as a member of the corporate authorities, may be called upon to act or vote upon the conditions (which includes the salary) of his or her employment and/or discipline. In effect, Public Act allows firefighters to also become their own employer. However, it is well-settled public policy in Illinois that no man can contract with himself. 19 Illinois courts and the Illinois Attorney General have opined that there are a variety of situations where conflicts of interests can exist among public officials. For instance, a conflict of interest exists when a village president is also a village administrator. 20 A conflict exists when municipal officers are also employees of a contractor doing business with the municipality. 21 A conflict of indirect interest would exist when the tenants of a public housing unit were serving on the board of commissioners for the housing authority. 22 Furthermore, the Attorney General has opined that an indirect conflict of interest could exist where a village trustee, who is also a deputy sheriff and provides part-time police services to the village through a contractual relationship with the county, is required to act upon the village s contract with the county. 23 Since a conflict of interest occurs under these circumstances, it only logically follows that a conflict of interest occurs if a firefighter is simultaneously a Mayor or council/board member of the same municipality because the firefighter would have an interest in his or her employment contract with the corporate authorities. In conclusion, even though this column concentrates on the incompatibility and conflicts that Public Act creates in relation to corporate authorities, Public Act also creates a massive conflict with a variety of other statutes prohibiting a conflict of duties (e.g. the School Code, the Park District Act, the Counties Code, the Townships Code, etc.). This new law has the inexplicable reality of only creating problems where problems do not need to exist. As a result, a mountain of expensive and unnecessary litigation is bound to take place unless the General Assembly repeals this new law. In the alternative, negative results can occur for violating the various statutes mentioned in this column ILCS 135/1 et seq. (West 2004) ILCS 105/2 (West 2004) ILCS 5/ (West 2004). 4 See People ex rel. Smith v. Brown, 356 Ill. App. 3d 1096, 1100, 828 N.E.2d 306, 309, 293 Ill. Dec. 336, 339 (3d Dist. 2005) ( a conflict of duties... result in incompatibility of offices ) Ill. App. 3d at 1098, quoting People v. Claar, 293 Ill. App. 3d 211, 215, 227 Ill. Dec. 307, 687 N.E.2d 557, 560 (1997) ILCS 5/ (West 2004).

5 7 People v. Smith, 260 Ill. App. 166 (3d Dist. 1931) ILCS 5/ (West 2004) ILCS 5/ (West 2004) ILCS 5/ (West 2004). 11 Redemske v. Village of Romeoville, 85 Ill. App. 3d 286, 406 N.E.2d 602, 40 Ill. Dec. 596 (3d Dist. 1980) ILCS 5/ (West 2004) ILCS 5/ (West 2004) ILCS 5/ (West 2004). 15 E.g. 65 ILCS 5/ et. seq. and 65 ILCS 5/ Ill. App. 3d 437, 451 N.E.2d 1324, 72 Ill. Dec. 1 (1st Dist. 1983) ILCS 105/3 (West 2004) ILCS 5/ (West 2004). 19 Sherlock v. Village of Winnetka, 59 Ill. 389 (1871). 20 Mulligan v. Village of Bradley, 131 Ill. App. 3d 513, 475 N.E.2d 1029, 86 Ill. Dec. 650, (3d Dist. 1985). 21 People ex rel. Pearsall v. Sperry, 314 Ill. 205, 145 N.E. 344 (1924). 22 Brown v. Kirk, 64 Ill. 2d 144, 355 N.E. 2d 12 (1976). 23 Ill. Att'y. Gen. Op. No (January 31, 1996) Illinois Municipal League