City won't remove council members for late payments
The Naperville City Council members whose eligibility to serve was questioned because of late utility payments say they are confident they can retain their seats.
Council members Joseph McElroy and David Wentz were found to have been behind on utility payments during the past two years, and the watchdog website authors who uncovered the late payments in a Freedom of Information Act request said that means the city should declare their seats vacant.
But a legal opinion from Acting City Attorney Jill Wilger says it's not up to the city to determine whether a vacancy exists.
While a section of the municipal code says an elected municipal officeholder is ineligible “if that person is in arrears in the payment of a tax or other indebtedness due to the municipality” at any time during the term, Wilger said there are two legal obstacles to the city using that section of code to declare McElroy and Wentz unable to serve.
The code provides no legal process to address a case of a debt owed by an officeholder, and it doesn't define what it means to be “in arrears.”
Wentz said Wilger's opinion, and an outside legal opinion he and McElroy sought from Ancel Glink law firm in Chicago, proves the lawmakers who updated the relevant section of code in July 2013 were not intending to kick officeholders out of their seats for late utility payments.
“It's clear from their opinion that this was not the intended impact of the rule,” Wentz said. “While I'm not defending what had happened and we have both become current on our utility bill payments, the question of what is in arrears is very vague.”
John Kraft, one of the authors of the downstate Edgar County-based Illinois Leaks website, said he disagrees with the legal opinions from the city and Ancel Glink.
“The Illinois municipal code speaks for itself. It declares that an elected official of a municipality is not eligible to hold office if they become in arrears of a debt due the municipality at any time during their term of office,” Kraft said. “A ‘debt' is anything owed, and ‘in arrears' means not paying the total amount due on the date that it is due.”
Kraft said the city has the authority to declare the seats vacant, after his review of documents showed Wentz has owed late monthly payments 22 times, while McElroy has been behind on his utility bill six times in the past 2½ years.
“We know the city is not required to declare it vacant, only that they have the authority to declare it vacant,” Kraft said.
Since Wilger's opinion is that the city cannot determine if a vacancy exists, the only way for the issue of McElroy and Wentz's eligibility to be taken any further is for someone to bring it to the attention of the state's attorney or attorney general, Wilger said.
Kraft and Illinois Leaks co-author Kirk Allen, however, said they are unable to do that because they do not have “standing” as Naperville residents, living instead in Paris and Kansas, Illinois, both south of Champaign. It is now up to Naperville residents to determine if they want additional review of McElroy and Wentz's eligibility, Kraft said.
“We screwed up. We should have paid the bills exactly on time,” McElroy said.
He and Wentz sought the opinion from Ancel Glink, the firm that wrote the Illinois Municipal Handbook, to ensure they understood the legal ramifications of the late payments they made on bills for city water, electric and garbage pickup service.
“As soon as this accusation occurred,” McElroy said, “I knew that we needed to do a very thorough investigation to make sure that there was no true impropriety going on.”
Documents show Wentz paid $197 in late fees during the past 2½ years, while McElroy paid $42 in late fees. Both said late payments are a thing of the past.
“I'm not defending what had happened, but I'm saying that we are making amends for it,” Wentz said. “In the future we will make sure that utility bills are paid on time.”