The LWVPFA has recently adopted, after intensive study, a position on the issue of any person serving in two or more elected positions simultaneously. Led by Barbara Sturges.
Holding Two Public Offices Simultaneously
After lengthy study and in keeping with our recent Consensus Meeting on the subject, on January 19, 2009, the board of directors of the League of Women Voters of the Park Forest Area adopted the position statement which follows:
The League of Women Voters of the Park Forest Area (LWVPFA) supports the concept that an individual should not simultaneously HOLD local public offices which have been determined to be incompatible either by a prohibition in statutory law or case law or determined to be incompatible in an Illinois Attorney General's opinion. If incompatibility is suspected, it is appropriate for LWVPFA to investigate if the offices in question are incompatible.
The LWVPFA supports education on this subject for the public as well as current and potential office holders. Education efforts should be on a continuum from informing the public and candidates prior to an election to, if necessary, informing a board that a vacancy should be declared if the situation warrants.
The LWVPFA supports enactment of stricter legislation to prohibit individuals from holding local public offices simultaneously where incompatibility exists.
Some of the background material used to develop this position is shown below -- some Frequently Asked Questions, information on relevant written and case law and information on Attorney General opinions.
An incompatibility of public office arises when either the Illinois State Constitution or a statute (the written law) specifically prohibits the occupant of one office from holding the other office, where the duties of either office are such that the holder of one office cannot, in every instance, properly and fully, faithfully discharge all the duties of the other office, or where one office is deemed to be superior to the other.
An incompatibility of public office can be determined by examining whether the vested interests of one office directly or indirectly affect the vested interests of the other office. In such cases, the duties of one office will interfere with the performance of the duties of the other office. "Public offices are generally considered incompatible where such duties and functions are inherently inconsistent and repugnant, so that because of the contrariety and antagonism which would result from the attempt of one person to discharge faithfully, impartially, and efficiently the duties of both offices, considerations of public policy render it improper for an incumbent to retain both." People v.Claar,293 Ill. App. 3d 211, 216-217 (1997). Incompatibility is to be determined on an individual basis by reviewing the facts and circumstances surrounding the two public offices in question. Examples of the applicable facts and circumstances in question are: 1)whether the two entities contract with each other; 2)whether one entity determines the pay of individuals in the other entity; 3)whether one entity is subordinate to the other entity; or 4)whether one entity takes an action that may not be in the best interests of the other entity.
A conflict of interest is personal in nature and arises from the activities or interest of an individual outside of the public office held. A conflict of duties arises out of the duties of the public offices themselves.
Incompatibility of public office applies to elected offices and appointed offices, but not to employment relationships.
Several factors can be used to indicate if a position is a public office or an employment relationship. Some of these factors include: 1Whether the position was created by law; 2)whether the position requires an oath or a bond; 3)whether the duties of the position are prescribed by law rather than by contract or agreement; and 4)whether the nature of the duties of the position are determined without regard to the particular person who holds the position.
According to Michael Luke of the Illinois Attorney General's Office, an individual in public office has a responsibility to not assume incompatible offices. Such an individual should resign from the first office upon assuming the second office.
If the holder of one public office accepts a second public office that is incompatible, the very act of acceptance results a resignation of the first office. In such cases, the board may declare a vacancy of the first position and fill that vacancy. If this does not occur, the State of Illinois may bring suit to force the person out of the first position. If the State does not bring suit, a private individual with legal standing may bring a private suit. If no action is taken to remove the person from the first office, the lack of action essentially becomes a ratification of the person holding the two incompatible offices.
A private individual may ask the person in the incompatible public office to resign; a private individual may ask the first board to declare a vacancy; and a private individual may ask the Illinois Attorney General and the County State's Attorney to bring suit to force the person out of the first position.
Recusal is not a sufficient remedy where two public offices have conflicting duties because public officials are elected to be the voice of the citizens and abstaining from a vote deprives the citizens of their voices. Also, public policy demands that an office holder must discharge his duties with the actuality of impartiality and undivided loyalty. Such conflicts of duty are public conflicts and cannot be cured by recusal. However, private conflicts of interests may be cured by recusal.
An actual conflict is not required, only the possibility of an eventual conflict must occur before legal action may be brought against a person who attempts to hold two public offices that are incompatible.
The public can find out if certain public offices are incompatible by 1consulting an attorney; 2)by searching the Illinois State Constitution, Illinois compiled Statutes and Illinois case law for details on the specific offices; or 3)by asking the Attorney General whether or not an opinion has been reached on the compatibility of the specific offices.
The Public Officers Prohibited Activities Act has been amended with the following:
Nothing in this Act shall be construed to prohibit an elected municipal office from holding elected office in another unit of local government as long as there is no contractual relationship between the municipality and the other unit of local government.
This has been interpreted to mean that an individual may serve on a library board and a village board in the same community. However, there may still be other facts and circumstances that may render the two offices to be incompatible.
While this issue may seem insignificant, if an individual is holding two incompatible public offices at the same time, it can affect the average resident's life in several ways:
- An individual holding two incompatible public offices will affect how your tax dollars are being spent. Such an individual will be making decisions on how tax dollars are spent for each of the offices he is serving in and these decisions may be in conflict with one another.
- An individual holding two incompatible public offices may not be able to adequately represent the needs and desires of his constituency, you, if he cannot faithfully, impartially, and efficiently execute the duties of both offices. For example, if he must recuse himself from a particular vote because of the incompatibility, and this particular issue is of great importance to you, he is not adequately representing your interests as a constituent.
An individual holding two incompatible public offices may be required to make a decision in one office that will provide him a personal material benefit, such as a pay ioncrease, in the other office.
A. Illinois Constitutional Prohibitions: Illinois Complied Statutes; and Public Officer Simultaneous Tenure Act
Illinois Constitutional Prohibitions
- Article IV§2 + Legislators who are public officials or employees of government entities may not be paid as public official or employee while in attendance as legislator (no double-dipping).
- Article IV§13 + Judges and associate judges cannot be officers of the U.S.A., state or local government, school districts or political parties while holding a judicial position.
- Article IV§19 + State's Attorneys may be elected as such in multiple counties if the electorate agrees.
Illinois Compiled Statues Public Officer Prohibited activities Act
- 50 ILCS 105/1 +County board members may be chairs of board or members of its regional planning commission, alderman in low population areas, forest preserve trustees, county extension board members or on the assessor's board of review or any other position if there is no contractual relation between the two entities or holding both offices is allowed by law. A county board member who accepts any other position must resign the county board position. If the county board member does not resign from the county board, his or her election or appointment to the other position is void. By case law, a county board member CANNOT serve on emergency phone system board due to contractual relationships. Low Population Area: Municipality with fewer than 1,000 people in a county with fewer than 50,000 people.
- 50 ILCS 105/1.1 + For counties with less that 550,000 people, county board members may be township highway commissioners.
- 50 ILCS 105/1.2 + For counties with less than 40,000 people, county board members can be board of education members, regional board of school trustees, board of school directors or board of school inspector members.
- 50 ILCS 105/1.3 + For a village, town or city with less that 2,500 people, a trustee or alderman may be on the school board, regional board of school trustee, board of school directors or board of school inspectors.
- 50 ILCS 105/2 + No alderman or trustee may be appointed by mayor or village president unless takes a leave from alderman/trustee position or holding of the two positions is authorized by law. May be a volunteer fireman and may hold office in a different unit of local government so long as there is no contractual relation between the two entities.
- 50 ILCS 105/2a + Township supervisor/trustee cannot accept appointment to another position by board of township trustee unless resigns or the appointment is specifically authorized by law. May be a volunteer fireman and may hold office in a different unit of local government so long as there is no contractual relation between the two entities.
- 50 ILCS 105/4 + If this act is violated, it is a class 4 felony and the prohibited office becomes vacant.
Public Officer Simultaneous Tenure Act
- 50 ILCS 110/2 + May hold office of county board member and township supervisor. In counties less than 100,000 people, may hold county board member and township trustee positions. In counties of less than 300,000 people, may be county board member and township assessor or town clerk. Airport Authorities Act
- 70 ILCS 5/5 + Airport authority commissioners cannot be member of governing body or employee or officer of an municipality, county, other local government unit or elected to an office in the state or federal government. Chicago Park District Act
- 70 ILCS 810/3 + Chicago Park District board members are subject to the Public Officer Prohibited Activities Act. Hospital District Law
- 70 ILCS 910/13 + Board of directors of hospital district is subject to the Public Officer Prohibited Activities Act. Kankakee River Valley Area Airport Authority Act
- 70 ILCS 5/5 + Kankakee River Valley Area Airport Authority commissioners cannot be elected to office of the State of Illinois or any political subdivision thereof. Local Mass Transit District Act 70 ILCS 3610/4 + Except for the Metro East Area, the trustees on the transit district board cannot be elected officials of any municipality or county creating the...
In general, any prohibitions against holding public office, even two simultaneously, should be strictly interpreted.
Fitzsimmons v. Swailes, 101 Ill. 2d 458 (1984) The offices of county board member and township assessor are incompatible because the office of township assessor is subordinate to the county board since the county board determined the salary and budget of the supervisor of assessments.
Myers v. Haas, 145 Ill. App. 183 (1st district, 1908) The offices of state senator and municipal clerk are incompatible because the State Constitution specifically forbids a state senator from holding another office simultaneously, and the duties of each office are such that the holder of one cannot in every instance, fully and faithfully discharge all the duties of the other.
Barsanti v. Scarpelli, 371, Ill. App. 3d 226 (2d District, 2007) The offices of village trustee and township park district commissioner are incompatible. These offices are incompatible because the performance of the duties of one interfered with the performance of the duties of the other. This issue was demonstrated in this situation by the need for the elected official to abstain from any vote.
E&E Hauling v. Pollution Control Board, 116 Ill. App. 3d 586 (2d District, 1983) The incompatibility doctrine concerns limits on simultaneous office holding, not the validity of particular decisions made by those individuals holding more than one office.
Teros v. Verbeck, 155 Ill. App.3d 81 (3d District, 1987) The offices of deputy county coroner and county board member are incompatible because the coroner's office was subordinate to the county board since the coroner's office budget was determined by the county board.
People V. Claar , 293 Ill. App.3d 211, (3d District, 1997) The offices of mayor and director of the Illinois Toll Highway Authority are compatible. The offices are not subordinate to each other and, even though it is conceivable that the two offices would interact, they typically would react very rarely, and, therefore, the offices had no inherent conflict. The court concluded that on these facts that the holder of these two offices could fully and faithfully discharge the duties of both offices.
People v. Brown, 356 Ill. App. 3d 1096 (3d District, 2005) The offices of county park district board member and city alderman are incompatible. These positions are so inherently in conflict with one another that one individual should not be allowed to hold both offices because of the statutory ability of the city and the county park district to enter into contracts with each other.
If a statute or the Illinois Constitution prohibits the holder of one public office from holding another or specifically allows the holding of the two offices simultaneously, the law dictates. However, if no law addresses the offices in questions, the Attorney General of Illinois may be requested to issue an opinion, based on whether the two are found to be compatible. An opinion will only be issued if requested by the Governor, another elected or appointed State Officer, or a State's Attorney. An opinion provides support in an argument or a lawsuit but is not binding.
"Offices are deemed to be incompatible when the holder of the one public office cannot fully and faithfully perform all the duties of the other office." In opinions in which the offices were found incompatible, "potential conflicts in the duties of the offices" were cited as the reason a person could not "fully and faithfully discharge" all the duties of both.
Reasons for finding public offices incompatible ("potential conflicts in duties") include:
- The two governmental entities are allowed to enter into agreements or contracts;
- One of the governmental entities impacts the funding of the other;
- An individual holding one public office has authority to act upon the appointment, salary and/or budget of his superior in the second office.
Each of these situations represents an instance in which an individual cannot adequately protect and represent the interest of both entities he has been chosen to represent. A person trying would be in the untenable position of advancing the interest of governmental unit at the expense of the other.
Opinions of the Attorney General have found the following pairs of public offices to be incompatible:
- City Council Member and School Board Member
- City Plan Commissioner and Township Trustee
- Community College Board Trustee and County Board Member
- County Board Member and Township Trustee (in counties greater than 100,000)
- County Board Member and School Board Member
- County Executive and Township Supervisor
- Deputy Assessor and Township Supervisor
- Deputy Supervisor of Assessments and Township Assessor
- Multi-Township Assessor and Village Trustee
- County Board Member and Mayor or Village President