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HomeMy WebLinkAbout1977 Election Beckman Qualifications MEMORANDUM: TO: Mayor Verbic and members of the City Council. FROM: Councilman Herbert Hill SUBJECT: Opinion from the Attorney General of the State of Illinois on the qualifications of Councilman Ronald Beckmann to hold office. In an effort to resolve the question of the qualifications of Councilman Ronald Beckmann to hold his seat on the Elgin City Council I suggest that we submit the facts, as we know them, to the Attorney General of the State of Illinois for his opinion as to whether or not Councilman Beckmann's living arrangement qualifies him as a legal resident of the City of Elgin. The principal facts in this case are not in dispute and could be submitted to the Attorney General as outlined in the attached letter. The central issue in this controversey is whether or not living in a home other than your principal abode for the majority of the nights of each week qualifies that place as one's legal residence for voting purposes. If the Attorney General finds that this arrangement satisfies the law we can drop the matter, on the other hand if he finds that this living arrangement does not meet the test for residency we can declare Councilman Beckmann's seat to be vacant and go about the task of selecting his replacement. The Attorney General's office is a disinterested third party who could be expected to deliver an unbiased opinion. In taking this step the City Council would not be wasting any more of its time and the procedure would not require the expenditure of any tax- payers dollars. The City Council would be fulfilling it oblig- ation to uphold the law, and could not be accused of sweeping an important question under the carpet. Herbert Hill July 8, 1977 TELEPHONE 312/695-6500 OF Et, Any te. �qk - 'gin150 DEXTER COURT E L G I N , ILLINOIS 6 0 1 2 0 tttu rt0 Mrs. Marie Yearman City Clerk 150 Dexter Court Elgin, Illinois 60120 Dear Mrs. Yearman: We, the undersigned members of the Elgin City Council, indicate by our signatures below that we hereby call for a special meeting of the Elgin City Council to be held at 8:00 P.M. on Wednesday, July 6, 1977, in the council chambers for the purpose of discussing the qualifications of Ronald Beckmann to continue to serve on the Elgin City Council, and further direct you to serve notice on all members of the Elgin City Council by 8:00 P.M. Tuesday, July 5, 1977, as required by law. Richard L. Verbic, Mayor • w Harry W. Barnes, Councilman K5P4-4/:164/14nr Robert Gilliam, Councilman Herbert L. Hill , Councilman Judith Anne Strattan, Councilwoman S eve West, Councilman • TELEPHONE 312/695-6500 (41401`fgC � tit 150 DEXTER COURT ELGIN , ILLINOIS 60120 July 13, 1977 The Honorable William E. Scott Attorney General of the State of Illinois Springfield, Illinois Dear Attorney General Scott: The qualifications of City Councilman Ronald Beckmann to serve on the Elgin City Council have been challenged because of a dispute over his legal residency. We are submitting the facts that have been stipulated in the case and request your opinion as to whether or not Councilman Beckmann is a legal resident of the City of Elgin. Councilman Ronald Beckmann was duly elected to the Elgin City Council in April of 1975. At the time of his election he resided with his family in an apartment on Congdon Avenue in the northeast section of the City of Elgin. In July of 1975 Councilman Beckmann purchased a lot at 826 Hopi Drive in Catatoga II subdivision, a residential area consisting of permanent homes located in an unincorporated area of Kane County several miles to the west of the corporate limits of the City of Elgin. In May of 1976 Councilman Beckmann completed construc- tion of a three-bedroom home on this lot at a cost of $72,000 and removed his family and belongings from the apartment on Congdon Avenue to the new location in Catatoga II subdivision. Upon moving from the Congdon Avenue apartment Councilman Beckmann trans- ferred his voters registration to 844 Bellevue Avenue in Elgin, Illinois. The residence at 844 Bellevue Avenue is owned by Councilman Beckmann's in-laws, Mr. and Mrs. Raymond Gnekow. M . and Mrs. Gnekow are full time residents of that home and own all of the furniture therein. All of the Beckmann's furniture and belongings are located in the house in Catatoga II subdivision. ,Councilman Beckmann claims that he and his family live at the Bellevue Avenue address four nights each week. The Beckmanns contend that their attorney told them that residency is determined by the place where one sleeps 51% of the time, so that staying at Mrs. Beckmann's parent's home Monday night through Thursday night each week qualifies them as legal residents. Councilman Beckmann has his drivers license, mail, telephone and other personal matters listed at the Bellevue Avenue address. Kane County mails his tax bill for the Catatoga II property to the address on Bellevue Avenue. } The Honorable William E. Scott -2- July 13, 1977 Councilman Beckmann's daughter, Jennifer, has attended school at Hillcrest School, 80 Airlite Avenue in Elgin since September of 1976. This school serves the Catatoga II subdivision which is part of the Elgin U-46 School District. Jennifer is enrolled to re-enter Hillcrest School when the new term begins in September of 1977. School records indicate that Jennifer's parents listed her home address as 826 Hopi Drive in Catatoga II subdivi- sion. The school serving the Bellevue Avenue address of Councilman Beckmann's in-laws is McKinley School located at 258 Lovell Street, Elgin, Illinois. The Beckmanns contend that they received permission from the kindergarten teacher at Hillcrest School for Jennifer to attend classes there becanse Jennifer's baby-sitter lived in the Catatoga II area and the arrangement was most convenient. The Elgin City Council is faced with the question of what constitutes residency. The members of the city council have been advised that residency is defined as one's permanent abode and what is generally considered to be "home". Councilman Beckmann is relying on his attorney's advice that where he and his family "sleep 510 of the time" is his legal residence. Council- man Beckmann admits that he is staying at the Bellevue Avenue address of his in-laws four nights a week in an effort to hold on to his city council seat. The City Council would appreciate having your opinion as to whether or not this arrangement qualifies Ronald Beckmann to be considered a legal resident of the City of Elgin, Illinois, and thus qualified to hold the office of Councilman. • Hopefully, this type of residency question will not be a new subject for your office. In that case we would hope to have a prompt answer to this question so that the controversy may be resolved as quickly as possible. Very truly yours, City Council, City of Elgin By Mayor nlc TELEPHONE 312/695-6500 1 ; •• OFF tic� 'a 150 DEXTER COURT E L G I N , ILLINOIS 60 1 20 •i,1,r���t July 13, 1977 Mayor and Members of City Council City of Elgin 150 Dexter Court Elgin, Illinois 60120 Dear Mayor and Council Members: You will recall that I recently advised you that the qualifications of a council member may be determined by the City Council or by a quo warranto action brought in the Circuit Court. I also suggested that since there is no established procedure for such action by the council; quo warranto seemed more appropriate. I understand that Councilman Hill has suggested that the opinion of the Attorney General be sought on the question of Councilman Beckmann's qualifi- cations in view of his separate residences, in and out of the City of Elgin. The quo warranto statute provides that complaints may be brought by the Attorney General or the States Attorney, and if they decline to do so by a private citizen if a sufficient private interest is alleged. In Peo. ex rel. Brooks v. Village of Lisle, 24 Ill. App. 3d 342, the issue presented for review was whether the City of Wheaton, as a municipality, and as a representative of its citizens, had standing to initiate quo warranto proceedings challenging the annexation of territory outside the City of Wheaton by the Village of Lisle. The Court held: • "The right to act as representative for the People remains inherently, exclusively and legally vested in the Attorney General and the State's Attorney. Where matters of purely public import touching no private interest are involved, only these public officials can qualify as proper party plaintiffs. This limitation was intended to avoid the con- fusion and possible dispute which might arise if concurrent control of the quo warranto remedy was to vest in other hands. (People v. Wood, 411 Ill. 514, 521-25 (1952) .) We therefore find that the City of Wheaton, in its capacity as representa- tive of the People, fails to qualify under Section 2 of the Quo Warranto Act as a proper party plaintiff to assert a public right. Mayor and Members of City Council -2- July 13, 1977 There remains the question of whether the City of Wheaton is a proper party to apply for leave to file a quo warranto complaint as a 'citizen having an interest in the question on /its? own relation. ' As previously noted, this interest must be private in nature in order to entitle one to file a petition on his own relation. Although it may appear that the City of Wheaton, in a certain sense, has an interest not common to the general public, only by turning our backs on the fundamental characteristics of quo warranto, its origin and development, could we find plaintiff's interest to be private. (People v. Wood, supra, at 524.) The right here asserted is plaintiff's interest in planning and zoning for adjacent territory outside its municipal boundaries, clearly a governmental rather than private function. (See Merin v. City of Wheaton, 379 Ill. 504, 509 (1942) , for the distinction between governmental and private functions.) We find no private interest asserted and thus the City of Wheaton fails to ualify as a 'citizen having an interest in the question on /[ts7 own relation. "' Therefore it appears that the City Council of the City of Elgin may not institute quo warranto proceedings. For the reasons expressed orally and in writing, action by the City Council may present great practical difficulty. Therefore, if the City Council believes that further action is required, I recommend that it forward the facts as known to the Attorney General and the State's Attorney for appropriate action, if any. Very truly yours, Erwin Jents Corpo ation Co, el EWJ/nlc July 13, 1977 The Honorable William E. Scott Attorney General of the State of Illinois Springfield, Illinois Dear Attorney General Scott: The qualifications of City Councilman Ronald Beckmann to serve on the Elgin City Council have been challenged because of a dispute over his legal residency. We are submitting the facts that have been stipulated in the case and request your opinion as to whether or not Councilman Beckmann is a legal resident of the City of Elgin. Councilman Ronald Beckmann was duly elected to the Elgin City Council in April of 1975. At the time of his election he resided with his family, his wife and daughter, in an apart- ment at 850 Congdon Avenue in the northeast section of the City of Elgin. In May 1976, Councilman Beckmann and his wife and daughter moved out of the apartment on Congdon Avenue and into certain rooms in a house at 844 Bellevue Avenue, also in the northeast section of the City of Elgin. The residence at 844 Bellevue Avenue is owned by Council- man Beckmann's in-laws, Mr. and Mrs. Raymond Gnekow, who continue to reside in the portion of the house not lived in by Councilman Beckman, his wife, and daughter. In April 1974, Councilman Beckmann purchased Lot #36, later to be known as 826 Hopi Drive, in Catatoga II subdivision. The Catatoga I and II subdivisions constitute a residential area consisting of permanent homes located in an unincorporated area of Elgin Township, in Kane County, one and one-quarter miles to the west of the southeast corner of Bowes Road and Randall Road, the present corporate limits of the City of Elgin. Being within a mile and one-half of the city limits of Elgin, the Catatoga subdivisions were approved by the Elgin Plan Commission and the City Council. At first, Beckmann re- garded the purchase of the lot as an investment, to be sold at a later date. Previously, Beckmann had made other such real estate investments. He had purchased Lot #38 in Catatoga I in May 1973 and had sold that lot, at a profit, in July 1975. He had owned a house in Century Oaks, a residential area formerly outside of the City of Elgin, but annexed to the City about two years ago. _He had owned a house on Schiller Avenue in the City of Elgin. -2- In October 1975, Councilman Beckmann started construction of a three-bedroom house on the lot at 826 Hopi Drive, in Catatoga II. By.May 1976 construction had proceeded to the point where it could be partially furnished and Beckmann, his wife, and daughter could spend weekends in the house. Since May 1976, Councilman Beckmann and his wife and daughter have lived at 844 Bellevue Avenue from Monday morning until Friday evening. Weekends, from Friday evening until Monday morning, Beckman and his wife and daughter spend at their country home at 826 Hopi Drive, in Catatoga subdivision in unincorporated Elgin Township. Councilman Beckmann said in a prepared statement to the press and the City Council: "I wish to respond once again to the questions which have been raised about my residence in the City of Elgin and therefore my legal eligibility for serving on the City Council. Let me state, loud and clear, I maintain my residence in the City of Elgin. My wife and daughter and I reside at 844 Bellevue Avenue. " Beckmann's wife and daughter live with him at 844 Bellevue Avenue. Beckmann and his family occupy three rooms and a bath, plus use of the kitcherr at 844 Bellevue Avenue. This apartment is furnished primarily with furniture and personal effects of the Beckmanns, including clothing and toys of their daughter. The Beckmanns live at 844 Bellevue Avenue, pur- suant to a formal lease, duly signed and notarized, between Mr. and Mrs. Be-ckmann and Mr. and Mrs. Raymond Gnekow, the parents of Mrs. Beckmann. The Beckmanns eat their breakfasts and dinners at 844 Bellevue. Avenue. The physical presence of Councilman Beckmann and his wife at 844 Bellevue Avenue is important to the health of both the father and mother of Mrs. Beckmann, because her father had a serious heart attack late in 1975 and her mother had a stroke in the spring of 1977. The voter's certificates of registration of Councilman Beckmann and his wife show his residence at 844 Bellevue Avenue. Beckmann and his wife have voted, since May 1976, at Precinct No. 5 of Elgin Township, in which 844 Bellevue Avenue is included. Their Federal income tax return and Illinois income tax return show their residence as 844 Bellevue Avenue. Their telephone number is listed in the telephone directory at 844 Bellevue Avenue. The City Directory lists the Beckmanns at 844 Bellevue Avenue. -3- The Beckmanns' address for their mail is 844 Bellevue Avenue. All their charge accounts and credit cards show the address of 844 Bellevue Avenue. The tax bill for the property in Catatoga II is mailed by Kane County to the Beckmanns at 844 Bellevue Avenue. Even the dog of the Beckmanns, which has been at 844 Bellevue Avenue, has on his license the name of the owner, Ron Beckmann, at 844 Bellevue Avenue. The two automobiles of the Beckmanns are registered at 844 Bellevue Avenue. The driver's licenses of Beckman and his wife show the address of 844 Bellevue Avenue. The Beckmanns receive their friends and acquaintances during the week at 844 Bellevue Avenue. From Friday evening until Monday morning, Councilman Beckmann and wife and daughter spend their time in the house at 826 Hopi Drive in Catatoga II subdivision. The house is not yet fully completed and it is not yet fully furnished. The Beckmanns had thought when they built the house, that they would perhaps sell the house at a later date and benefit from sharply accelerating land values and prices of houses. The house and surroundings are so nice, that they decided to keep and use the house as a country house on week-ends. Further plans of the Beckmanns for the house are not finally decided. It is possible that the Catatoga development will be annexed to the City of Elgin, as was another comparable development, Century Oaks, about two years ago. Jennifer, the five-year old daughter of Councilman Beckmann and his wife, was enrolled in Kindergarten in September 1976 at Hillcrest School. This school, at 80 Airlite Avenue in the City of Elgin, serves the Catatoga II subdivision which is part of the Elgin U-46 School District. Councilman Beckmann pays real estate taxes on his house at 826 Hopi Drive to School District U-46. Jennifer is enrolled at Hillcrest School for first grade, when the new term begins in September 1977, with the specific approval of the school authorities. School records indicate that Jennifer's parents listed her home address as 826 Hopi Drive in Catatoga II subdivision. The Beckmanns state that Jennifer has been enrolled in Hillcrest School in the hope of continuity, either under con- continuance of present living arrangements or other circum- stances. The Beckmanns did not want Jennifer to have to change schools. In two weeks of vacation, during the last -4- school year, the Beckmanns worked on the house and Jennifer went on the School Bus. Frequently, in the afternoon after school, Jennifer comes on the bus from Hillcrest School to Catatoga with her friend who lives next door, and is later picked up by the Beckmanns. Mrs. Beckmann has stated: "On occasion, I would leave our Bellevue address too early in the morning to drop Jennifer off at school and would take her to our Catatoga home with me where she would later walk to the school bus with friends. In the fall, Jennifer will stay with a babysitter after school in the Hillcrest school area." The babysitter has definitely been arranged for, as the parents of Mrs. Beckmann are elderly and sick and can no longer serve as babysitter. The Elgin City Council is faced with the question of which constitutes residency. In that case we would hope to have a prompt answer to this question so that the controversy may be resolved as quickly as possible. Very truly yours, City Council, City of Elgin By Mayor TELEPHONE 312/695-6500 1 4:77, 4. - , ,.. , Vull L. , ,, 4 iglu reji 150 DEXTER COURT E L G I N , ILLINOIS 60120 \\--‘2t / July 18, 1977 The Honorable William E. Scott Attorney General of the State of Illinois 160 North LaSalle Street Chicago, I1. 60602 The Honorable Gene Armentrout States Attorney of Kane County Kane County Courthouse Geneva, Ii. 60134 Gentlemen: The qualifications of City Councilman Ronald Beckmann to serve on the Elgin City Council have bean challenged because of a dispute over his legal residency. We are submitting the facts that have been stipulated in the case to you since Illinois Statutes indicate that your offices are charged with the duty and power to examine the qualifications of local public officials in Quo Warranto proceedings in court. Councilman Ronald Beokmann was duly elected to the Elgin City Council in April of 1975. At the time of his election, he resided with his family in an apartment at 933 Congdon Avenue in the northeast section of the City of Elgin. In April of 1974, Councilman Beckmann had contracted to purchase in installments lot #36 , later to be known as 826 Hopi Lane, in Catatoga II sub- division, a residential area consisting of permanent homes located in an unincorporated area of Elgin Township in Kane County. He acquired title to the lot in July of 1975. This site is located approximately one and one-quarter miles west of the present corporate limits of the City of Elgin. In May of 1976 , Councilman Beckmann and his wife, Sue, and daughter, Jennifer, moved out of the apartment on Congdon Avenue into certain rooms of a single family residence at 844 Bellevue Avenue. The residence at 844 Bellevue Avenue is owned by Council- man Beckmann's in-laws, Mr. and Mrs. Raymond Gnekow, who continua to reside in the portion of the house not occupied by the Beckmanns. The Beckmann's apartment at 844 Bellevue Avenue consists of three rooms and a bath plus use of the kitchen. The rooms occupied by Councilman Beckmann and his family are furnished primarily with furniture and personal effects of the The Honorable William E. Scott July 18, 1977 The Honorable Gene Arnentrout Beckmanns, including clothing and toys of their daughter. The Beckmanns live at 844 Bellevue Avenue, pursuant to a formal lease, duly signed and notarized, between the Beckmanns and Mr. and Mrs. Gnekow. The Beckmanns eat their breakfasts and dinners at 844 Bellevue Avenue. The physical presence of Beeknann and his wife at 844 Bellevue Avenue is important to the health of both the father and mother of Mrs. Beckmann, because her father had a serious heart attack late in 197.3 and her mother had a stroke in the spring of 1977. In October 1975, Councilman Beckmann started construction of a three.bedroom house on the lot at 826 Hopi Lane, in Catatoga II. By May 1976 construction had' proceeded to the paint where it could be partially furnished and Beckmann, his wife, and daughter could spend weekends in the house. Since May 1976 , Councilman Beckmann and his wife and daughter have lived at 844 Bellevue Avenue from Monday morning until Friday evening. Weekends, from Friday evening until Monday morning and vacations, Beckmann and his wife and daughter spend at their country home at 826 Hopi Lane, in Catatoga subdivision in unincorporated Elgin Township. The voter's registration of Councilman Beckmann and his wife show his residence at 344 Bellevue Avenue. The Beckmanns have voted since May of 1976 at Precinct No. 5 of Elgin Township, in which 844 Bellevue is located. Federal and State income tax returns, telephone listing, City Directory listing, mail, charge accounts and credit cards all are listed at 844 Bellevue Avenue. The tax bill for the property in Catatoga II is mailed by the Collector of Kane County to the Beckmanns at the Bellevue address. The Beckmann's two automobiles and driver's licenses also show the Bellevue address. The Beckmanns receive friends and acquaintances there during the week. Councilman Beckmann states that he first considered the purchase of the lot in Catatoga II as an investment, to be sold at a later date. Previously , he had purchased Lot #33 in Catatoga I in May of 1973 and sold the lot for a profit in July of 1975. The house is not yet fully completed and it is not yet fully furnished. The Beckmanns had thought when they built the house, that they would perhaps sell the house at a later date and benefit from sharply accelerating land values and prices of houses. The house and surroundings are nice and they decided to keep and use the house as a country house on week-ends and vacations, as stated. Further plans of the Beckmanns for the The Honorable William E. Scott -3- July 13, 1977 The Honorable Gene Armentrout house are not finally decided. It is possible that the Catatoga development will be annexed to the City of Elgin, as was another comparable development, Century Oaks, about two years ago. The house at 826 Hopi Lane, Catatoga II is the only property which Councilman Beckmann now owns. The house in Catatoga II is the third house which Councilman Beckmann has owned. The Beckmanns previously owned a home at 1163 ;Ieadow Lane in Century Oaks subdivision in Elgin. The house was located within the city limits of Elgin and was their principal residence. Prior to that, the Beckmanns owned a house at 846 Schiller Avenue. This house was also located within the City of Elgin and was their principal residence. The Beckmann's daughter, Jennifer, was enrolled in kindergarten at Hillcrest School, 30 Airlite Avenue, in the City of Elgin, in September of 1976. Hillcrest School serves the Catatoga II subdivision which is part of the Elgin U-46 School District. Councilman Beckmann is a taxpayer in the U-46 School District through taxes assessed on his house at 326 Hopi Lane, Catatoga II. Jennifer is enrolled to re-enter Hillcrest School for first grade when the new term begins in September 1977, with the approval of school's authorities. When Jennifer was enrolled in kindergarten, Jennifer's parents listed her address as 326 Hopi Lane in Catatoga II subdivision, specifically informed the school authorities as to residence at 844 Bellevue Avenue, and listed 844 Bellevue Avenue as the address to be-contacted in case of emergency. The Beckmanns state that Jennifer has been enrolled in Hillcrest School in the hope of continuity , either under continuance of present living arrangements or other circumstances. On occasion, the Beckmanns would leave their Bellevue address for work too early in the morning to drop Jennifer off at school and would take her to the Catatoga home with them where she would later walk to the school bus with friends. In several periods of vaca- tion, either for Beckmann, or his wife, during the last school year, the Beckmanns worked on the house and Jennifer then went on the School Bus. Frequently, after school, Jennifer comes on the bus from Hillcrest School to Catatoga with her friend who lives next door, and is later picked up by the Beckmanns. In the fall, Jennifer will stay with a babysitter after school in the Hillcrest school area. The babysitter has definitely been arranged for, as the parents of Mrs. Beckmann are elderly and sick and can no longer serve as babysitter. N The Honorable William E. Scott -4- July 18, 1977 The Honorable Gene Armentrout Questions have Lien raised in the press and on the radio and in City Council as •to the residency of Councilman Beckmann at 844 Bellevue Avenue. Since your offices only have standing in the courts in Quo Warranto proceedings to determine this matter, we • are directing this matter to you for final disposition. Very truly yours, City Council, City of Elgin By: Richard L. Verbic • Mayor TO WHOM IT MAY CONCERN: We the neighbors of Ronald, Sue, and Jennifer Beckmann of 844 Bellevue Ave, are therefore submitting thier signatures of evidence as to their residency from, Monday thru Thursday being at 844 Bellevue; These signatures are to be used as evidence and not for publication; SIGNED )ffix, , 3 A__41,-Ifk_a_t_ b--,4) CCAP#-e, 8/41- 7.14/vt• 79f- s,3 -1 ictee„..„‘ >/- Sumitted and sworn to me July 13th, 1977 id''%1G441:Yi X44247,&-pg. /.477y 4/4e4 TO WHOM IT MAY CONCERN: We the neighbors of Ronald, Sue and Jennifer Beckmann of 826 Hopi, are therefore sub- mitting our signatures of evidence as to thier residency here only on Friday evening, Saturday, and Sunday, returning to th@jr Bellevue Ave address on Monday thru Thurs; This is to be used as evidence only, and not for publication; SIGNED ? / 8 Hopi f1 7 fild-xp,) )- •)-- , g4-KR/ 8 , 6L �L /t26,6(.44, ejelh7,‹:=2) 65 2- �i9-t Submitted and sworn to me this July 13th, 1977 ALWV-evl Notary Public LAW OFFICES ANCEL, GLINK, DIAMOND, MURPHY & COPE, P.C. r 180 NORTH LA SALLE STREET CHICAGO, ILLINOIS 60601 312 / 782-7606 LOUIS ANCEL DAVID LINCOLN ADER MARVIN J. GLINK OF COUNSEL STEWART H DIAMOND JOSEPH A. MURPHY RONALD S COPE PETER M. ROSENTHAL JOHN B. MURPHEY April 20, 1985 PETER D. COBLENTZ ROBERT E. GRUNDIN KATHERINE S. JANEGA HENRY E. MUELLER DAVID W. OTT NEWSLETTER SUPPLEMENT SUSAN L. KURLAND ROBERT K. BUSH PETER M. BARRON BARBARA A. ADAMS DENISE M. GRAYSON MICHAEL REIC_H KEITH A. DORMAN Traditionally, at this time of the year we receive questions from newly elected officials concerning such issues as the commencement of the term of a newly elected official , the compensation of a newly elected official , and of particular interest to newly elected mayors, the appointment of officers. This supplement is intended to answer some of those questions. The material here is general in nature, and for any particular problem, we, of course, suggest that you consult your municipal attorney. The statutory references are to the Chapter and Section of the Illinois Revised Statutes. APPOINTMENT OF CITY AND VILLAGE OFFICERS Unless otherwise specifically provided by statute (principally under the managerial and strong mayor forms) , all officers of a city or village are to be appointed by the mayor or president by and with the advice and consent of the council or board of trustees (Ch.24, §§3-7-2, 3-8-1) . There- fore, the mayor or president is the only one who may submit the name of an appointee for an office to the council . The power of appointment cannot be delegated by the mayor to any other person or group (People v. McCann, 247 Ill . 130) . It is up to the council to either approve or reject the ap- pointment. If the council approves the appointment, there is no problem. If the council rejects the appointee, and there is a vacancy in the position, the rejected appointee nevertheless may assume the position as a temporary officer until the council and the mayor can agree on a permanent appointee (Ch.24, §3-7-2) . (See the note on the legislative history of this section which appears in the Smith-Hurd annotated statutes. See also Quernheim v. Asselmeier, 296 Ill . 4949; People ex rel . Reusch v. Hire, 406 Ill . 341; Dumke v. Anderson , 3 Ill .Dec. 177) . If the office to which the rejected appointee seeks ratification is being filled by its previous occupant, who was appointed for a now-expired definite term, it appears that the holdover officer is entitled to remain in that position as against any claim of the rejected appointee (see Trost v. Tynatishon , 12 Ill .App.3d 406) . Vacancies in all city or village offices are filled in the same manner. Although appointments are usually for a one-year term, they may be for a longer term, but unless expressly allowed by statute (e.g. , zoning board • LAW OFFICES ANCEL, GLINK, DIAMOND, MURPHY & COPE, P.C. of appeals) , they may not exceed the full term to which the mayor or president was elected (Ch. 24, §3-7-2) . If a new mayor takes office in the middle of what was the old mayor' s term, the term of those officers previously appointed for a full term does not cease. If no term is specified when an officer is appointed, he serves at the pleasure of the appointing authority and may be removed at any time by the appointment of another person to the same position (Quernheim v. Asselmeier, 296 Ill . 494) . When a mayor takes office at the end of the term of his predecessor, he has the power of appointment for all officers whose terms end with that of the previous mayor. He need not remove these officers nor ask for their resignation. Rather, he need only appoint a new officer to these positions, for at the time the council or board approves an appointment, and the new appointee qualifies by taking the oath and posting bond, the term of the previous officer ends. Of course, the mayor may re-appoint the old officer to serve during his term. This may be done in two ways: (1) the mayor may simply not make a new appointment since a previous officeholder remains in office until his successor is nominated, approved and qualifies; or (2) the mayor may ask that the corporate authorities approve the old appointee as his new appointment. The council by ordinance should prescribe the duties, define the powers, and fix the term, salary, and bond of the appointed officer. The municipality may add duties to an office which was not specified by statute, but the duties of an office named in the statutes may not be less than those there provided (Ch. 24, §3-9-1) . Any such appointed officer may resign , but he continues in office until his successor has been chosen and has qualified. If such officer ceases to perform his duties or to hold such office by reason of death, permanent physical or mental disability, conviction of a disqualifying crime, or dismissal or abandonment of the office, the mayor may appoint a temporary successor to the officer (Ch.24, §3-7-2) . Chapter 102, §2, provides that the appointment of any trustee or alderman to another municipal office in his community except as a volunteer fireman during the term of office for which he was elected is void. There is a common misconception that §3-7-2 limits temporary appointments to thirty days. This is not the case. The only provision in the statutes which deals with the temporary appointment of officers relates to such appoint- ments by the Board of Fire and Police Commissioners which may appoint temporary policemen or firemen for a perod of sixty days (Ch.24, §10-2. 1-16) . THE CITY COUNCIL OR BOARD OF TRUSTEES. CREATION OF OFFICES; DISCONTINUANCE OF OFFICE; DUTIES By ordinance, passed by a two-thirds vote of all the aldermen elected, the city council in its discretion may provide for the election by the electors of the city (Ch.24, §3-4-19) , or for the appointment by the mayor, with the approval of the city council (Ch.24, §3-7-1) , of a city collector, city marshal , city superintendent of streets, corporation counsel , city comptroller, or any of them, and any other officers which the city council considers -2- LAW OFFICES ANCEL, GLINK, DIAMOND, MURPHY & COPE, P.C. necessary or expedient. The two-thirds vote required in this instance does not invoke the power of the mayor to vote, nor is his office used in figuring whether the two-thirds vote has been achieved(Ketchmark v. Lynch, 107 Ill .App. 2d 36) . Municipalities thus have a broad choice in the kinds and numbers of appointed or elected offices they may create. It must be remembered, however, that to create an office, an ordinance (passed by a two-thirds vote) is required, while an employment may be created by hiring someone by simple motion. In an ordinance or resolution to take effect at the end of the current fiscal year, the city council , by a two-thirds vote, may discontinue any office so created, and devolve the duties of that office on any other city officer. An office cannot be discontinued when the sole reason for the dis- continuance is to reestablish the position as one which is filled by council selection rather than the mayoral appointments (Pechous v. Slawko, 64 I11 .2d 576) . After such discontinuance, no officer filling any office so discontinued shall have any claim against the city for salary alleged to accrue after the date of discontinuance. The same rules apply to the creation and dis- solution of village offices. Chapter 24, §3-9-1, provides that every officer shall perform such duties, in addition to those which may be prescribed by law, and be subject to such other rules and regulations as the corporate authorities may provide by ordinance. This section assures that the legislative branch of municipal government may assign certain needed tasks to elected and appointed executive officers. The assignment of duties, however, may not be inconsistent with statutory power granted these officers, nor may these extra tasks result in extra compensation (Ch.24, §§3-7-2, 3-13-1) . COMMENCEMENT OF TERM AND COMPENSATION The compensation of municipal officers may be fixed by ordinance. After the compensation of elected officers is fixed, it may neither be increased nor diminished so as to take effect during the elected officers ' term of office and shall be fixed at least two months prior to the general municipal election in which voting is held for such offices (Ch. 24, §§3-13-1 , 3-13-2) . The requirement that salaries for elected officials must be set in advance of the election will prohibit the practice of raising salaries between the date of the election and the date the officials are sworn in for a new term. The terms of elected municipal officers commence at the first regular or special meeting of the corporate authorities during the month of April follow- ing the proclamation of the results of the regular municipal election at which such officers were elected, except as may otherwise be provided by ordinance fixing the date for inauguration of newly elected officers of a municipality. No such ordinance shall fix the time for inauguration of newly elected officers later than the first regular or special meeting of the cor- porate authorities in the month of May following such election (Ch.24 §3-2-2) . Where salaries have been improperly increased, the officer who receives the improper amount may be successfully sued by a citizen who seeks to recover the funds for the municipality (Dalton v. Wendt, 14 I11 .Dec. 524) . -3- LAW OFFICES ANCEL, GLINK, DIAMOND, MURPHY & COPE, P.C. The compensation of appointed officers (except those officers appointed to fill vacancies in elective offices) may be increased but may not be dimin- ished so as to take effect during their term (Ch.24, §3-13-1) . This provision reflects an amendment which became effective in August of 1975 to allow for increase in the compensation of appointed officers. This amendment was made possible by §10 of the Illinois Constitution of 1970 which limited the prohi- bition against salary increases or decreases to elected officials only. Formerly, neither elected nor appointed officials serving for a definite term could have their salary changed during that term ( Illinois Constitution of 1870, Art. IX, §11) . The salary of appointed officials and employees may be established in the appropriation ordinance. The salary of elected officials must be estab- lished in an ordinance other than the appropriation ordinance (Ch. 24, §3-13-2) . The compensation of the mayor and councilmen in certain manager form municipal- ities is governed by Ch. 24, §5-4-1. In a case decided under the prior law, it was held that the salary of policemen and other officers whose term of office was not prescribed by statute or ordinance might be changed from time to time (Anderson v. Jacksonville, 380 Ill . 44) . With the change in constitutional and statutory law allowing increases but not decreases in the salaries of appointive officers during their term, it could be argued that such persons had a guaranteed minimum salary. However, both logic and case law would seem to point to the conclusion that such appointed officers with an indefinite term would still be subject to upward or downward fluctuations in their salaries (Chicago Patrolman ' s Ass 'n v. City of Chicago, 56 Ill . 503) . Where there is a minimum wage law, however, as in the case of policemen and firemen in municipalities over 5,000, its terms must be complied with (Ch.24, §§10-3-1, 10-3-2) . Also, see Ch.4, §39s-3, which requires certain work peformed for municipalities to be compen- sated for at prevailing wage rates. An agreement by the employees to accept a lower salary will not free the municipality from the obligation to pay the minimum fixed by statute (George v. Danville, 383 Ill . 454) . Based upon the 1985 United States Supreme Court decision in Garcia v. San Antonio MTA, attention must now also be paid to federal statutes affecting minimum wages and the treatment of overtime pay. Prior to 1971, the salaries which could be paid to mayors, trustees and aldermen were limited by statute. Amendments to the Illinois Municipal Code have altered the law so that mayors, trustees and aldermen may receive such compensation as is provided by ordinance (Ch. 24, §3-13-1) . Since elective offices are involved, the ordinance cannot be amended during the term of office. The mayor, trustee or alderman is thus entitled to a continuation of the salary in effect at the moment he took office. For aldermen and trus- tees, the ordinance establishing the salary must state whether it is payable at an annual rate or for each meeting actually attended (Ch. 24, §§3-13-5, 3-13-7) . Because the salaries of officials become frozen at the time of their elections, and because terms of office are staggered, it is frequently the case that one half of the legislative body receives a different compensation than the other half. -4- LAW OFFICES ANCEL, GLINK, DIAMOND, MUBPHY & COPE, P.C. Section 3-13-2 of the Illinois Municipal Code prohibits granting extra compensation to any public officer or employee after service has been rendered, in addition to the salary or compensation provided for the position. (See also, Koons v. Richardson, 227 Ill .App. 477) . Moreover, this prohibition applies to a municipal officer who holds a second office within the munici- pality for which there is no statutory allowance of additional compensation (Lee v. City of Venice, 206 Ill .App. 376; Dalton v. Wendt, App. , 14 Ill .Dec. 524) . But where the office of clerk and collector are distinct, an appellate court has held that it is not improper to increase the salary of the collector even if that person is also the clerk. Further, where an officer has served without compensation being paid, an ordinance which grants a salary to the holder of such office may not take effect during the present officeholder' s term (Baumrucker v. Brink, 373 Ill . 82) . Any municipal officer or employee is entitled to reimbursement for any reasonable actual expenses incurred by him in the performance of his duties (Ch.24, §§3-13-5, 3-13-7) . Chapter 24, §3-13-5, provides that aldermen may receive reimbursement for expenses incurred in attending committee meetings. Although similar language does not appear in the section regarding trustees (Ch. 24, §3-13-7) , the intent of the section appears to allow a like reimbursement. The mention of reimbursement rather than compensation leads to the conclusion that com- mittee meetings are non-compensable, and that trustees and aldermen paid by the meeting are probably only entitled to payment for regular and special meetings of the entire legislative body. Some communities give their aldermen or trustees a flat sum as an expense allowance. If the public official does not use the entire amount of the expense allowance and does not return it to the municipality, it must be declared as income on his federal and state tax return. CONCLUSION We hope that the foregoing may be of assistance to you. The material in this Newsletter comes from the Illinois Municipal Handbook, written by Louis Ancel and Stewart H. Diamond. Lou set the standard many years ago for our firm of seeking to educate our municipal clients and being available to answer questions. If you have any questions concerning the material con- tained in this Newsletter, please do not hesitate to contact us. We also recommend your attendance at the Conference for Newly Elected Officials sponsored by the Illinois Municipal League. That Conference will be held at the Arlington Park Hilton, Arlington Heights, Illinois, on June 7 and 8, 1985. -5-