Trustees ignore law, Village Attorney

As I noted in my earlier posting, Trustees have said they will reintroduce a measure to limit the powers of the President, to prevent any further action against Paul Humpfer to recognize his seat as vacant.

However, the memo to the President and Trustees from Attorney James Rhodes, dated March 14, 2008, [PDF Document] advises that such a measure would likely be unlawful, attempting to rescind authority granted by State statute to Sarto as both a Village President and as a citizen.

The proposed resolution also states that the “Village President is without authority to initiate or pursue complaints, whether in quo warranto or otherwise, with the Kane County State’s Attorney’s Office or the Illinois Attorney General’s Office, in any way related to Trustee Humpfer or in any way intended to remove Trustee Humpfer from office.”

As previously stated, the quo warranto provisions of the Code of Civil Procedure provide that the proceeding may be brought by either the Attorney General or the States Attorney, either of his or her own accord or at the instance of any individual relator. Any citizen of the Village of Carpentersville can request a quo warranto proceeding be brought. {Emphasis added}

In other words, the Board does not have the authority to declare that the “Village President is without authority to initiate or pursue complaints, whether in quo warranto or otherwise, with the Kane County State’s Attorney’s Office or the Illinois Attorney General’s Office, in any way related to Trustee Humpfer or in any way intended to remove Trustee Humpfer from office.” This is something any citizen of the Village of Carpentersville (“or by any citizen having an interest in the question on his or her own relation”) may request.

Rhodes continues …

In addition, as the resolution correctly notes, a Village President only has authority to act on behalf of a Village when granted such authority by state statute, Village ordinance, or by a necessary implication thereof. Section 3.1-35-5of the Illinois Municipal Code sets forth the general duties of a Village President as follows:

The mayor or president shall perform all the duties which are prescribed by law, including ordinances, and shall take care that the laws and ordinances are faithfully executed.

A Village President’s duty to “take care that the laws and ordinances are faithfully executed” would give the President the sufficient authority to seek a determination from the States Attorney or Attorney General that the law regarding forfeiture of office is faithfully executed. {Emphasis added}

Therefore, from the language contained therein, President Sarto was also acting in accordance with the authority granted by state statute, “to take care that the laws and ordinances are faithfully executed”, which he has the sworn duty to abide by.

in light of this, it would seem that — once again — Trustees, with Judy Sigwalt leading the charge, are trying to change the law to fit their own agenda, trying even to take away rights that may be exercised by any citizen (just as when they tried to take away rights guaranteed by the First Amendment).

But, given that Sarto’s actions to determine whether a vacancy existed were part of his duties as Village President, what does that say about Trustees Sigwalt, Ritter, Teeter and Hinz failure to take action when they take a similar oath to uphold the laws of the Country, State, County and Village?

Perhaps quo warranto action should be sought against them for refusing to make any declaration on the eligibility of Paul Humpfer to retain his seat; as provided for in the Illinois Municipal Code.

So, what about this second memo issued by Rhodes dated Monday, April 28, 2008 [Word Document] (hereafter, “Rhodes-28”)?

It was prompted by Sarto’s letter, dated April 17, 2008, that appears to have been triggered by the failure of the Board to address the issue of the Humpfer vacancy.

While Rhodes-28 does declare that Sarto cannot make the determination on his own, it goes on to provide additional information and reiterates to the Board the law regarding vacancies in office from Section 3.1-10-50(c)(2) of the Illinois Municipal Code.

This section provides as follows:

(2) Guilty of a criminal offense. An admission of guilt of a criminal offense that upon conviction would disqualify the municipal officer from holding the office, in the form of a written agreement with State or federal prosecutors to plead guilty to a felony, bribery, perjury, or other infamous crime under State or federal law, constitutes a resignation from that office, effective on the date the plea agreement is made. For purposes of this Section, a conviction for an offense that disqualifies a municipal officer from holding that office occurs on the date of the return of a guilty verdict or, in the case of a trial by the court, on the entry of a finding of guilt. {Emphasis added}

Both Rhodes-14 and Rhodes-28 advise the Board to make a determination on this vacancy, and note that a quo warranto action “may still be prosecuted”.

It would appear that this advice is almost urged because the crimes that Mr. Humpfer was found guilty of committing seem to clearly fit the definition of an “infamous crime”.

Rhodes-14 appears to make this evident by stating:

The Tomek case also suggests the facts of the crime may be reviewed to determine whether the acts may be infamous. {Emphasis added}

And goes on to specify:

Aggravated Battery … is an infamous crime.

Based on the “facts of the crime”, aggravated battery was committed, which is an infamous crime. Therefore, according to the law, a vacancy has occurred.

All that remains to do is for the Board to officially determine the seat vacant, in order for the process for filling the vacancy may occur.

Finally, it is my recommendation that the President and Board of Trustees consider this vacancy issue and make a determination whether or not facts exist that would cause a vacancy to exist. I have been advised that a number of members of the Audit and Finance Committee have indicated that they will not attend future committee meetings until this matter is resolved. This issue has caused disruption during village board meetings and now may cause additional disruption in village business. While the decision of the Board is not conclusive and a quo warranto action might still be prosecuted, a Village Board determination should eliminate further disruptions and will allow village matters to proceed.

Here, Rhodes-28 hints that if the Board would declare the seat to not be vacant, the quo warranto action may likely still declare the seat vacant (“While the decision of the Board is not conclusive…” ).

It would seem to be in the best interest of the Village for the Board to declare Humpfer’s seat vacant, in order to return to Village business without “further disruptions”.

Daily Action Report: May 1, 2008

Good morning, Carpentersville!

It’s May 1st. On this day, five years ago in 2003, President George W. Bush announced “mission accomplished” in Iraq aboard an aircraft carrier. Approximately 163,000 troops remain deployed in Iraq.

Today, temperatures are expected to reach to around 70 degrees, with thunderstorms likely this afternoon.

Today is also Day 57 that Paul Humpfer retains a seat on the Board despite ineligibility to hold office.

Speaking of the seemingly never-ending saga of Paul Humpfer and the Carpentersville Village Board, the Daily Herald is reporting today that at the May 6, 2008 meeting of the Village Board, Trustees plan to reintroduce an ordinance seeking to stop Mayor Bill Sarto from taking any legal action to remove Paul Humpfer from office.

Despite the advice of Village Attorney Jim Rhodes, there was no indication that the Trustees will answer the question of whether Humpfer’s conviction of domestic battery using a deadly weapon has disqualified him from retaining his elected office.

Led by Judy Sigwalt, trustees have repeatedly tried to limit powers the State of Illinois has given to Mayors or Presidents. In September 2007, Sigwalt even tried to have Sarto censured for a private email exchange that occurred between Sarto and a resident.

In the current case with Humpfer, trustees are very aware of their duties under the law, but are ignoring that. Instead, they spend their time and energy (and taxpayer dollars!), and use their elected office and their powers to protect their friend from prosecution.

Members of the public have already made their voices heard, that they want Paul Humpfer to resign or be removed from office. After Humpfer’s conviction, numerous emails were sent to the Board, and comments at the March 18 meeting (the first meeting after the conviction) were overwhelmingly in support of Humpfer’s resignation or removal from office.

The Courier-News wrote today that the 3 members of the Audit & Finance Commission had likely not seen the memo from Attorney Jim Rhodes before Tuesday night’s special meeting of the Commission, and it may have changed the the meeting.

In reporting on the same matter in the Daily Herald, it was noted:

At least one member said he would not attend future finance commission meetings as long as Humpfer remained chairman.

Check back later for an examination and discussion of the memos, laws and Board’s responsibilities.