Recent Court Decisions

An unsuccessful school board candidate filed an election contest and prevailed in the circuit court of Will County. Upon the school board member’s motion, the circuit court awarded costs against the county clerk. The clerk appealed. The Appellate Court reversed. It held that no statutory authority exists to award costs to a candidate challenging an election. The section of the Election Code providing that an election contest be tried in a like manner as "other civil cases" incorporates only the provisions contained in the Civil Practice Law, and not the other provisions of the Code of Civil Procedure governing an award of costs.

A former school board member appealed the court order that “ousted” him from serving on a school board for violating the Public Officer Prohibited Activities Act (50 ILCS 105/). That statute prohibits duly holding offices on both a county board and a school board. A few fellow school board members brought an action in “quo warranto” to enforce this law because the former board member was a member of the county board when he was sworn in to the school board. (“Quo warranto” is a legal proceeding that challenges an individual's right to hold an office or governmental privilege.) The appellate court found, among other things, that the court order at the time was proper. Note: During the course of this case, the former school board member ran for the school board again at the next election, and he was elected, sworn in, and is currently serving. For more information about incompatible offices, see the discussion in the Illinois Council of School Attorney’s document titled “Answers to FAQs; Conflict of Interest and Incompatible Offices,” at http://iasb.com/law/FAQsConflictofInterestIncompatibleOffices.pdf.

Simultaneously holding offices as a county board member and a school board member violates the Public Officer Prohibited Activities Act. In this case, the Kankakee County State’s Attorney sought an order seeking the ouster of a county board member. The individual first held the office of county board member before being elected to the school board. The Public Officer Prohibited Activities Act prohibits a county board member from holding any other office, except for several specifically enumerated circumstances not relevant here. The statute states that any such election is void. Therefore, rather than voiding the county board seat, the court voided the county board member’s election to the school board.

This decision has narrow applicability because it is based on a statute limiting county board members from holding a second office. The broader doctrine of incompatible offices is rooted in the principle of separation of offices as provided in the Illinois Constitution. The doctrine is intended to assure high quality performance with undivided loyalty. Appellate decisions have held that incompatibility arises if the duties of one office would necessarily prevent the office holder from faithfully performing all the duties of the other office. Under the doctrine of incompatible offices, the acceptance of an incompatible office is regarded by operation of law as a resignation from the first office.

Are teacher e-mails sent through the school district’s email system considered public records?

The Supreme Court of Wisconsin recently held they were not records under Wisconsin’s Public Record Law, and therefore that they were not subject to disclosure. The court found that materials are public records only if they have a connection with a governmental function. Under certain situations, such as when a disciplinary investigation is occurring, personal e-mails would be subject to disclosure, but this was not the case here.

Though not applicable in Illinois, the Freedom of Information Act 5 ILCS 140/ has the same connection to a governmental function that is discussed in this opinion. School officials and employees should take note of this case and not use school email systems for personal e-mails or information to avoid future conflict. For more information, please see the Illinois Attorney General website on OMA and FOIA.

Nika Grabavoy, Extern, Valparaiso University School of Law

Shari Gottlieb, a self-employed web designer, volunteered her services and designed a website which was used by Citizens for Wilmette Schools (committee). She sent the committee notice of an in-kind contribution valuing her work at $3,435. The committee did not file a schedule A-1 form for Gottlieb’s work, which is required for contributions greater than $1,000. After the election, the committee included Gottlieb’s work in its quarterly D-2 report, but later amended the D-2 to remove Gottlieb’s work. Wilmette resident Herbert Sorock filed a complaint with the Illinois State Board of Elections (board) which was dismissed.

Sorock appealed the dismissal arguing that the board improperly interpreted two relevant provisions of the election code. Sorock argued that Gottlieb’s time was an in-kind contribution under the statute and should have been reported. Alternatively, he argued that Gottlieb’s work meets the statutory definition of an electioneering communication and was therefore subject to disclosure. The court agreed with the board’s decision that Gottlieb’s work was not an in-kind contribution. The section of the statute which defines contributions provides that “any individual services provided voluntarily and without promise or expectation of compensation from any source shall not be deemed a contribution”. The court agreed with the board’s decision that Gottlieb’s work qualified for this exception and was not a contribution. The court concluded that the work could not be an electioneering communication because it did not communicate anything. As a web designer, Gottlieb had designed and programmed a graphical layout but had not authored the language of the site. The court affirmed the decision of the board, dismissing Sorock’s complaint.

Jared Boyer, IASB Extern