Lawyer: Carpentersville trustee issue up to board

With the controversy over Carpentersville Trustee Paul Humpfer's position hindering village business, the village attorney says the village president cannot unilaterally declare a vacancy and implored trustees to take action on the issue.

"The authority to determine whether the facts exist that would create a vacancy in that position rests with the corporate authorities of the village and not with the Village President alone," Village Attorney James Rhodes wrote in a memorandum Monday.

The opinion was in response to a letter Village President Bill Sarto sent to trustees and village staff earlier this month recognizing Humpfer's seat as vacant.

Sarto has repeatedly said the trustee's conviction of domestic battery and allegations that Humpfer no longer lives in Carpentersville preclude him from remaining as a trustee.

The village leader has asked the state attorney general and the Kane County state's attorney to remove Humpfer through a quo warranto -- a legal term describing an action that establishes the legitimacy of an officeholder.

He has also twice introduced an ordinance deeming the position vacant.

On both occasions, trustees refused to take action on the item.

Trustees Keith Hinz, Ed Ritter and Humpfer were all in attendance.

In a letter to trustees, Sarto wrote, "Since the position of village president or mayor retains the power to appoint to all boards, commissions, committees and certain positions … the village president therefore has the responsibility and, legally the duty, to make the determination of the vacancy of Paul Humpfer's trustee position."

But citing both the Illinois Election Code and the Municipal Code, Rhodes stated "if a vacancy occurs in the office of mayor or councilman, the remaining members of the council, within 60 days after the vacancy occurs, shall fill the vacancy by appointment."

Furthermore, Rhodes said it is up to the president and the board to determine if Humpfer was convicted of a criminal offense that would disqualify him from holding the office of trustee.

But Sarto disagrees and contends that Humpfer was convicted of an "infamous crime," resulting in immediate removal from office.

"The only argument that can be made is that domestic battery is no longer a crime in Carpentersville," Sarto said. "That is the only argument and that doesn't make any sense. In my opinion, the office became vacant by law."

Rhodes also recommended board action on the issue due in part to Tuesday's audit and finance commission meeting's abrupt end because four commissioners refused to attend the meeting with Humpfer as chairman.

Sarto and resident appointees Sherry Dobson, Michael Sievertson and Nathan Spain were absent.

Closing his opinion, Rhodes said a board decision is imperative.

"This issue has caused disruption during village board meetings and now may cause additional disruption in village business," Rhodes said. "While the decision of the board is not conclusive and a quo warranto action might still be prosecuted, a village board determination should eliminate further disruptions and will allow village matters to proceed."

Though three trustee members were present, the commission lacked a quorum and did not discuss agenda items on the advice of the village attorney.

"Because the audit and finance commission is a recommending body it is hard to get into a discussion without heading in that direction," said Anderson, who had consulted Rhodes.

The advisory commission was set to discuss a proposed $10 million bond issuance and repairs to Fire Station 2 on Lake Marian Road, as well as the collection of ambulance fees.

"I am disappointed that village business was not able to move forward tonight," Ritter said after the meeting was rescheduled to 7 p.m. on May 22."There were several issues from the last board meeting that needed to be cleared up."

Trustees said they expected to resolve the issue at the May 6 board meeting.

"We will definitely have our determination as to whether Paul should hold his seat or not," Ritter said. "Especially now that we have the village attorney's decision that the decision lies with the whole board."