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”.

Not so fast …

From reading recent statements on the question of Paul Humpfer’s residency status, some might conclude that intent is sufficient to satisfy the residency requirements for an elected position. However, courts have found that not to be the case, and in light of similar cases it is likely that the opinion of State’s Attorney John Barsanti would not stand up to the test by the courts.

According to a Legal Q&A on residency requirements from the Illinois Municipal League:

In determining whether an individual resides in the municipality, the courts have looked to whether the individual has a physical presence at fixed locations within the municipality for one year with a permanent intention to stay.

One piece of this criteria is intent; specifically “intention to stay”. But, that does not appear to be the overriding factor in the determination. Instead, it appears that “a physical presence at fixed locations within the municipality” would be an overriding criteria.

In People ex rel. Reed v. Thomas, the plaintiff owned a home in the municipality for over a year prior to the election, but he did not actually move to the municipality until October 1974, only six months prior to the April 1975 election. The court held that the plaintiff failed to meet the one year residency requirement of the statute. [43 111. App. 3d 372, 356 N.E.2d 1372, 2 III. Dec. 85 (5th Dist. 1976)]

If “intent” were really the overriding factor, we would expect the court to have held that the residency requirement was met because “the plaintiff owned a home in the municipality for over a year prior to the election”. However, because “he did not actually move to the municipality until October 1974, only six months prior to the April 1975 election”, the court found that the residency requirement was not met.

In other words, he lacked the “physical presence at fixed locations” to be considered a resident of the municipality.

Likewise, Paul Humpfer lacks the “physical presence at fixed locations” in the Village of Carpentersville to be considered a resident of Carpentersville for the past 10 months. It is interesting to note, too, that Paul Humpfer obtained his seat on the Board (twice!) from those who were no longer going to meet the residency requirement — setting a precedent that should also be a considerable factor in this situation, and something with which Paul Humpfer should be quite familiar.

Other than Humpfer’s commission of a crime, and subsequent finding of guilt, preventing him from residing at the home where he is said to “pay the bills”, there is no further impediment on his residency in the Village of Carpentersville. Therefore, it does still permit the test of residency to remain whether Paul Humpfer maintains “a physical presence” at any “fixed location” within the Village of Carpentersville.

It is clear from his public statements, the research and report of the private investigator and the statement of his wife, that Paul Humpfer does not pass that test for residency.

As such, the acknowledgment that Paul Humpfer does not meet the requirements for holding elected office in the Village of Carpentersville should be upheld. Further, he should not be allowed to participate as an elected member of the Village Board of Trustees, and should be further charged with disorderly conduct if he attempts to do so.

Humpfer conviction fits “infamous crime”

According to my research over the past several days, Paul Humpfer’s conviction fits the criteria of “an infamous crime”. The definitions I found for legal opinions stemming from Illinois case law point to the fact that, contrary to what the papers have been reporting, misdemeanors can also be considered infamous. This would be if the committed act “was inconsistent with accepted principles of honesty and decency, or one which involved moral turpitude”.

For all you “legal types” out there … I’ve included some quotes from applicable case law below. For others, let me lay it out simply for you…

At one site (which I unfortunately lost the link to — other sites are linked below) it mentions that, according to the case of People ex rel. City of Kankakee v. Morris ‘An “infamous crime” is one that is inconsistent with commonly accepted principles of honesty and decency.’ Keenan v. McGuane is also of the same opinion, as is People v Tomek.

I believe that this case clearly fits that criteria. After all, who would make the argument that battering your wife — especially with a deadly weapon such as a baseball bat is — is accepted in our community as “honest” and “decent”?!

I hope none of the Trustees would.

Most know that honesty and decency is defined by proper behavior and right judgment, something not demonstrated by Humpfer in either the commission of the heinous act, or his refusal to step down from his trustee seat.
And, as you can see even clearer, if you choose to dig deeper and read further … that is the legal opinion that defines “an infamous crime” in Illinois, for the purposes of determining whether a person is eligible to hold an elected (or appointed) office.

Thus, the conviction of Paul Humpfer fits the definition of “an infamous crime”, in terms of his ability to hold public office. Therefore, the seat has rightly been labeled vacant.

Now … for those of you “legal types” out there (and I’ll grant that I only went so far as 1) I could on the internet; and, 2) as seemed reasonably necessary to establish the facts.

Without further ado, then…

Searching deeper, particularly for Illinois cases, I found that the definition of “infamous crime” is not limited to felony convictions, but to some misdemeanor crimes as well.First … searching through “FindLaw for Legal Professionals” revealed State of Wisconsin v Ragan. Now, before you say, “That’s Wisconsin, not Illinois”, lets look at the text (emphasis added)…

Next, we look to certain case law from Illinois. We find these cases instructive because they address infamous crime in the context of eligibility to hold public office.

Rather than looking to the extent of the punishment, the Illinois cases are built on the common law principle that “[a]n infamous crime at common law was an act, the commission of which was inconsistent with the commonly accepted principles of honesty and decency, or one which involves moral turpitude.” Keenan v. McGuane , 150 N.E.2d 168, 175 (Ill. 1958) (quoted source omitted). See also Symonds v. Gualano , 240 N.E.2d 467, 468 (Ill. App. Ct. 1968); City of Kankakee v. Morris , 467 N.E.2d 589, 592-93 (Ill. App. Ct. 1984). We adopt this test for purposes of measuring whether a crime is infamous under Wisconsin law. Under this test, we conclude that felony theft is inconsistent with the commonly accepted principles of honesty and decency.

So, we see that “an infamous crime” is any one that “was inconsistent with the commonly accepted principles of honesty and decency”. Certainly, domestic battery is not part of the community of Carpentersville’s “accepted principles of honesty and decency”.

Let’s look a little further at this document (again, emphasis added)…

If we were ranking the severity of felonies in a vacuum, we perhaps might say that felony theft falls on the lower end of the scale. However, we deal here with the qualifications of a candidate to hold public office and the eligibility representations made by that candidate when seeking such office. Viewed in this context, the seriousness of such a conviction begins to take on greater significance.

The expectation of attaining or holding public office is a privilege, not a civil right. Morris , 467 N.E.2d at 592. The law is more concerned with the public interest in good government and confidence in its public officers than a defendant’s privilege in holding public office. Id .

Absolutely! And that is the preeminent objection to Paul Humpfer’s remaining in office: interest in “good government” and “confidence in [our] public officers”. And, that’s what the law and those, like our elected officials, should be concerned about safeguarding on our behalf.

But, this opinion is related to the commission of a felony, right? So how does this translate to saying that the commission of a misdemeanor fits the definition of “an infamous crime”?

Let’s keep going … 🙂

Section 1 or Article XIII of the Ill. Constitution of 1970 and 5 11 CS 280/1. An “infamous crime” is
one that is inconsistent with commonly accepted principles of honesty and decency. People ex rel. City of Kankakee v. Morris, 467 N.E.2d 589 (Ill. App.3, 1984). An admission of guilt, pursuant to a plea agreement, to an otherwise office disqualifying offense, constitutes a resignation (10 ILCS 5/25-2).

Going further, we find:

Further it has been said that infamy goes to the quality of the act rather than the punishment; hence, even misdemeanors which violate “ordinary honesty and decency” may be called infamous. People v Tomek, 54 Ill. App 2d 197, 202, 203 N.E. 2d 744, 747 (1964)

This explicit mention as a test for “infamous crimes” which may disqualify a person from office, seems to seal the deal.

Now, some may wonder about the appeal of Humpfer’s conviction that has been mentioned. How does this affect his status?

5 ILCS 280/1 covers it by saying that “If, subsequently, a final order reverses the conviction, eligibility to hold the office, to the extent of the original term then remaining, is restored, and the officer shall be reinstated, for the duration of the term of office remaining.”

And, that should settle it … I hope … so that the Village may get on with the real business it needs to attend to.