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 Such a resignation may be withdrawn at any time prior to the occurrence of that event.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.