Legal & Legislative Notes
by Robert A. Stuart General Counsel
CONGRESSIONAL BREAKFAST-JOE MARTIN ROOM, CAPITOL H-139, WASHINGTON, D.C. TUESDAY, MAY 18, 1976-8:00 A.M.
A breakfast meeting with the members of the Illinois Congressional Delegation has been arranged tor Tuesday, May 18, 1976 in the Joe Martin Room, Capitol H-139,in Washington for the purpose of providing an opportunity for elected park commissioners and park supervisory personnel from park districts and park and recreation governmental units within the State of Illinois to meet and discuss with their United States Senators and Congressmen problems of significance to the parks and recreational programs within Illinois.
Any elected park official or employee is invited to attend. Reservations should be made through the Springfield Office of the Illinois Association of Park Districts prior to Saturday, May 15. Each Park District in Illinois is requested to write a personal invitation to the Congressman from its District inviting and urging him to attend. Letters should also be sent to Senators Percy and Stevenson from each District.
ATTORNEY GENERAL HOLDS OFFICE OF TOWNSHIP AUDITOR INCOMPATIBLE WITH THAT OF PARK DISTRICT COMMISSIONER
In an interesting opinion rendered by Attorney General William J. Scott under date of March 17, 1976 (File No. S-1057) the Attorney General's Office has ruled that a township auditor who is subsequently elected as a park district commissioner has automatically vacated his office as township auditor because of incompatibility.
The Attorney General's opinion reads as follows:
COMPATIBILITY OF OFFICES:
Honorable C. Joseph Cavanagh
Dear Mr. Cavanagh;
This responds to your request for an opinion as to whether the offices of township auditor and park district commissioner are compatible when both the district and the township have substantially similar geographic boundaries. You further inquire as to whether the town board of auditors, which has as a member an individual who is also a commissioner of the park district, may expend Federal Revenue Sharing funds by contracting with the park district to provide funds for certain ordinary and necessary maintenance and operating expenses of parks located within the township.
Incompatibility of offices arises "where the duties of either office are such that the holder of the office cannot in every instance, properly and fully, faithfully perform all the duties of the other office." (People v. Haas, 145 Ill. App. 283,286.) Applying this rule, it is clear that the two offices are incompatible. Under the Intergovernmental Cooperation Act (Ill. Rev. Stat. 1973, ch. 127, pars. 741 et seq.) the township and the park district could enter into contracts. It is clear from your letter that is, in fact, what is contemplated. The officer as a district commissioner is under a duty to promote the development of parks. However, as a township auditor, he is under a duty to determine how township funds should be spent to best meet the needs of the citizens of the township and as such, must set priorities for the use of township funds, only one of which would be for the maintenance of parks. It is clear he could not properly and faithfully perform all the duties of each of the offices.
When an officer accepts a second incompatible office he automatically vacates the first. (People vs. Bott, 261 Ill. App. 261.) Since this is the case here, the condition of your second question will not arise. Under section 20 of article XIII of "AN ACT to revise the law in relation to township organization" (Ill. Rev. Stat. 1975, ch. 139, par. 126.10) the board of town auditors is authorized to expend funds for the ordinary and necessary maintenance and operating expenses for recreation. Thus, the board and the park district commissioners could enter into the proposed contract.
Very truly yours,
Applying the reasoning set forth in this opinion, it must be concluded that a park district trustee of commissioner may not legally hold a second elective office in Illinois.
Article VII of the 1970 Constitution of the State of Illinois, Section 10, provides as follows:
"(a) Units of local government and school districts may contract or otherwise associate among themselves, with the State, with other states and their units of local government and school districts and with the United States to obtain or share services and to exercise, combine, or transfer any power or function, in any manner not prohibited by law or by ordinance. Units of local government and school districts may contract and otherwise associate with individuals, associations, and corporations in any manner not prohibited by law or by ordinance. Participating units of government may use their credit, revenues, and other resources to pay costs and to service debt related to intergovernmental activities.
"(b) Officers and employees of units of local government and school districts may participate in intergovernmental activities authorized by their units of government without relinquishing their offices or positions.
"(c) The State shall encourage intergovernmental cooperation and use its technical and financial resources to assist intergovernmental activities."
Chapter 127, Ill. Rev. Stats. 1975 (Intergovernmental Cooperation Act, entitled "An Act authorizing state and local governing bodies to cooperate in the performance of their responsibilities by contracts and agreements" which was enacted to implement Article VII, Section 10 of the 1970 Constitution) Section 745 provides as follows:
"Any one or more public agencies may contract with any one or more other public agencies to perform any governmental service, activity or undertaking which any of the public agencies entering into the contract is authorized by law to perform, provided that such contract shall be authorized by the governing body of each party to the contract. Such contract shall set forth fully the purposes, powers, rights, objectives and responsibilities of the contracting parties."
Therefore, inasmuch as any governmental unit organized under the laws and statutes of the State of Illinois may contract and cooperate with any other governmental unit, the principle set forth in the Attorney General's opinion must clearly render any second elective office incompatible with any other. This, under that opinion being true regardless of whether the officer elects to act or refrains from acting in connection with an intergovernmental agreement between governmental units.
Illinois Parks and Recreation 9 May/ June, 1976