MORRISON – A regional watchdog group known for targeting smaller government entities throughout the region is nipping at the heels of Whiteside County and its airport board.
Edgar County Watchdogs Inc. – two men with a strong distaste for officials and boards that waste taxpayer money and disobey open meetings laws – is asking Whiteside County to justify why the airport board is paying an outside attorney to do what its state’s attorney is statutorily required to do.
In other words, Whiteside County is breaking the law, Watchdog founder John Kraft says. He cites state law, and a 1975 attorney general’s opinion to back that claim up.
Like most things legal, though, it all comes down to how you interpret the law – and which statutes apply in the end.
Former Whiteside County State’s Attorney Trish Joyce (she began her new job as a 14th Circuit Court judge on Wednesday) disagrees with Kraft’s interpretation, and cites other state statutes to support her position.
David Murray, 80, a former pilot and a retired partner of Ward, Murray, Pace & Johnson, has been the airport board’s attorney half his life. In addition to providing legal advice and representation, he attends airport board meetings, performs bookkeeping tasks, drafts the budget, collects hangar rent and dogs those delinquent in paying it, cuts the checks to pay the bills, and prepares the monthly airport board meeting minutes. He does this with the help of a secretary, whom he pays.
When he’s at his home in The Villages, Florida, he attends meetings via conference call.
For his services, he is paid $175 an hour, which amounts to about $17,000 a year.
It may not be much, but it’s taxpayer money improperly spent – Murray is doing a job the state’s attorney was elected to do: to represent the county and advise its officials and board on all legal matters, Kraft said.
While there are instances in which a county can hire outside legal counsel, the procedure is very specific – and codified in state law – and Whiteside County did not follow that process, he said.
Kraft has been discussing the matter with Murray and Joyce via phone calls and emails since August, in an attempt to rectify what he calls an illegal situation.
“I’m on a mission for the county to acknowledge that the county can’t hire an attorney,” he said.
Kraft main argument is based on a 1975 opinion from then-Attorney General William J. Scott, who was asked to rule whether Tazewell County legally could hire an attorney to advise its zoning board of appeals and county board.
The answer, Scott said, is no. The state Supreme Court has held that, absent any specific legislation, “the state’s attorney is the legal adviser for the county,” and “a county cannot hire a private attorney to advise the county board or any other county officers or boards.”
The exception is if the county needs specialized representation, say, from someone with a particular expertise that the state’s attorney lacks. In that case, an outside attorney can be used, but he or she must be approved by the state’s attorney and be appointed a special state’s attorney by the court. Simply having the state’s attorney’s permission is not sufficient to hire outside counsel.
In a letter responding to a Freedom of Information Act request Kraft sent the county, Murray told him that “no court order appointing a special state’s attorney exists. The airport board has the authority to independently retain counsel to provide assistance. It does so, and has done so since the airport’s formation approximately 65 years ago with the approval of each of the relevant Whiteside County state’s attorneys during that period.”
The response to his FOIA request seeking records showing state’s attorney approval of Murray’s hiring was, no such records exist, the approvals were oral.
In an email exchange with Kraft from Sept. 22 to Sept. 27, Joyce cites section 9 of 620 ILCS 45/6, the County Airport Law of 1943, which says airport boards may “employ or enter into contracts for the employment of any person, firm or corporation, and for professional services, necessary or desirable for the accomplishment of the objects of the Board of Directors or the proper administration, management, protection or control of its property.”
That section, she wrote, “allows the airport board to hire a legal professional. ... That is my understanding of the functions of the attorney the board hired pursuant to this section.”
Additionally, Joyce cited 55 ILCS 5/5-1018, a section of the state code that lays out the dos and don’ts for a county, which says “A county board may employ, appoint or contract for the services of such clerical, stenographic and professional personnel for the members of the county board, the committees of the board and the chairman of the board as the board finds necessary or desirable to the conduct of the business of the county, and may fix the compensation of and pay for the services of such personnel.”
That takes Kraft right back to the attorney general’s opinion. So why hire Murray? You don’t need an attorney to handle clerical duties.
Murray clearly is acting as the airport board attorney, Kraft said. He is referred to in airport board minutes as the board’s attorney, and has represented the airport board in court.
“Any function of an attorney for the airport rest with your office,” he wrote, asking Joyce to settle the matter by seeking the state Attorney General’s opinion on who actually is the “statutory legal representative of the Whiteside County Airport.”
“If you are confused about my duties, please review 55 ILCS 5/3-9005. I represent Whiteside County and its interests (including the Whiteside County Airport) ...”
So, where does that leave Kraft? As a private citizen, he cannot seek an attorney general’s opinion on the matter.
That leaves him trying to sneak an opinion in through the back door.
In the responses to his FOIA requests, some information was redacted. Murray, and another attorney who responded on behalf of the county, cited attorney-client privilege for the withholdings.
But, Kraft argues, Murray is not legally the county’s attorney – nor is the other, for that matter, also not having been court-appointed or approved – so neither can invoke the privilege, and cannot withhold the information. Indeed, they should not even be the ones supplying it.
He has asked the attorney general to rule on that issue.
Even of the attorney general agrees, however, there’s not much more Kraft can do. Such opinions are advisory.
A citizen could, however, file a federal false claims suit, to try to force the county to not only to drop the airport board attorney, but also to recover the wages he was paid.
It’s a tactic usually employed by whistleblowers going after people or companies whose actions have defrauded government programs.
FOR MORE INFORMATION
If you Google Edgar County Watchdogs, a February 2015 Chicago Tribune article on the men and their mission will pop up.
Once on the website, search for Whiteside County to read John Kraft's argument against an airport board attorney, and the email correspondence between Kraft and Whiteside County State's Attorney Trish Joyce, who disagrees with his interpretation.