Month: March 2012

What happens when a Board/Council member stops attending meetings or orally resigns?

By Joshua D. Herman

joshua.herman@mhtlaw.com

There will come a time for every body of local government that leads someone to ask: “What about Bob?” Maybe Bob is an elected alderman or trustee who has not come to a meeting in three months.  Maybe he is the elected official who orally announced his resignation at that last, politically-charged meeting. He may have been battling an illness, preventing him from attending meetings. Regardless of the reason, the uncertainty that results from such a vacancy can have significant consequences, such as whether a quorum is present or determining whether governmental actions are at risk of later being declared invalid.

This article addresses how municipalities may approach potential vacancies in office caused by oral resignations and abandonment, both to provide certainty and to comply with the law.

Oral Resignations are Invalid

Unfortunately, not every action taken by local government is welcome by both sides of a contentious issue. While rare, such meetings may even end in an elected official orally announcing his resignation. Other reasons may cause an official to offer his resignation, such as an illness or a new job that requires the official to move. Regardless of an official’s reasons for resigning, oral resignations are not valid under Illinois law.

Instead, to be effective, an elected official’s resignation must be written, signed, and notarized. A resignation that does not meet these three requirements is insufficient under Illinois law.

A resignation may be either conditional or unconditional. With an unconditional resignation, the elected official may specify a future date on which it will become effective. That date cannot be more than 60 days after the date the resignation is received by the officer authorized to fill the vacancy, who is usually the mayor or president.  A resignation that does not specify an effective date is effective when received by the officer authorized to fill the vacancy.

A conditional resignation is not effective until the specified conditional event occurs. Such a resignation may be withdrawn at any time prior to the occurrence of that event. If the event occurs, a conditional resignation is effective when the event occurs or the officer authorized to fill the vacancy receives the resignation, whichever is later.

Because all resignations must be received by the officer authorized to fill the vacancy, a municipal clerk must forward a certified copy of a resignation to such an officer within 7 days of its receipt.

Considering the above, a municipality that receives only an oral resignation should attempt to have the official provide a written resignation that is signed and notarized. Until such a resignation is provided, the official has not resigned. If the official does not cooperate with such a request, the board or council may pursue proceedings to determine whether the official has abandoned his office, thereby creating a vacancy.

Abandonment of Office

Unfortunately, a board or council is not always alerted to a potential vacancy by an officer’s resignation. Sometimes, an officer just stops coming to meetings. Fortunately, Illinois law empowers local governments to determine that a vacancy has occurred by abandonment, enabling that vacancy to be filled. Whether an absent officer has abandoned his office is a question that depends on the unique facts of the situation.  It is a sound practice for a municipality facing a potential abandonment to follow a procedure that explores the facts related to the potential abandonment to provide a basis for any decision it makes in this regard.

Many factors will determine whether an office has been abandoned, such as the official’s intent to abandon or the official’s ability to continue to serve in the elected office. Because there are many variables, a two-step process should be used to determine whether abandonment has occurred to overcome possible challenges such a determination may face.

First, the body may pass a resolution that identifies the possible abandonment and schedules a hearing to receive facts related to the abandonment. The resolution should also provide that the official at issue be notified of the hearing and should explain the procedure that will be used and the official’s rights (such as legal counsel, the opportunity to present evidence, etc.).

The next step is to hold the hearing to make a determination as to abandonment. At a minimum, the hearing should consist of the presentation of evidence that suggests the office has been abandoned. If the official in question is present, he/she should also be given an opportunity to present evidence and/or question any witnesses that testify.  Following the presentation of evidence, the body should deliberate before passing a resolution that makes a finding with respect to abandonment and contains a factual basis supporting that finding.

A vacancy in office exists on the date the corporate authorities determine that a vacancy by abandonment has occurred.

After a determination of vacancy, the mayor or president may proceed to take the appropriate steps to fill the vacancy.

Following the foregoing process should enable local governments to address the questions that arise in the face of potential vacancies while reducing the risk of challenge to the legitimacy of such actions, or any action taken by the government thereafter.

New Rules for Ordinance Violations

New Supreme Court Rules require review and updating of ordinances

By Joshua D. Herman

joshua.herman@mhtlaw.com

On December 7, 2011, new Illinois Supreme Court Rules (“Rules”) governing ordinance violations went into effect.  These new Rules address many issues a municipality faces when dealing with ordinance violations. The Rules clarify how a municipality may initiate ordinance prosecutions and address ways a municipality may resolve violations outside of court. Importantly, the new Rules also clarify that municipalities can request the court order remedies beyond just fines, potentially including an order to remedy violations or to prohibit future violations.

Municipalities should review their ordinances to ensure they are both up to date and drafted to take full advantage of (and comply with) the new Rules.  This article briefly addresses some of the more important changes and suggests where municipalities should begin their review.

Initiating Ordinance Prosecutions

Prior to the new Rules, most municipalities initiated ordinance violations through their police force (if they have one) or attorney. The new Rules clarify that a municipality may also initiate actions through certified mail and by personal service from a code enforcement officer. Allowing service by code enforcement officers can allow more efficient enforcement by allowing individuals most involved with an issue to pursue it. For example, building safety inspectors may issue tickets for property/building code violations, or animal control officers may ticket for animal violations, etc..

Alternatives to Court

Many municipalities resolve violations without resorting to court action. The new Rules clarify that while this is allowed, the manner and time limits to settling such matters must be provided for in the ordinance.

Limit Court Discretion

For municipalities that use court actions to resolve ordinance violations, the new Rules require courts to impose the minimum fine provided for by ordinance. This prevents the possibility of a court finding in the municipality’s favor, but imposing only a de minimis fine, such as $1.00.  To take advantage of this Rule, an ordinance must explicitly state the minimum fine.

Remedies other than fines

Until now, ordinance prosecutions have largely focused on fining violators. In addition to fines, the Rules also permit municipalities to request other appropriate relief, which may potentially include remunerating victims, remedying violations, or prohibiting future violations. To pursue such remedies in court, the relevant ordinance(s) must explicitly permit those remedies.

Other Considerations

In addition to expanding the ways in which a municipality may pursue fines or other relief for ordinance violations, the new Rules also impose additional requirements related to notifications of violators. These new procedural requirements require municipalities to review their own approaches to prosecution to ensure judgments obtained against violators are enforceable. At the very least, legal counsel should review the notifications provided to violators to ensure the municipality is complying with the new Rules’ requirements.

In light of these Rules, municipalities should review their codes to ensure they maximize the ways in which ordinance violations may be addressed. All municipalities should ensure that they have a general, catch-all ordinance that provides for minimum fines and settlement of ordinance violations without resorting to a court action.  Although requiring a review of a municipality’s code, the Rules are a valuable addition to any municipality desiring greater control and options in dealing with violators.