No decision 'til Wednesday on DuPage state's attorney flap

DuPage County Board members must wait until at least Wednesday to find out if they can get special legal counsel to advise them about replacing departing State's Attorney Joseph Birkett.

It also was revealed Monday that Birkett advised board members interested in succeeding him to review an opinion by former State's Attorney Jim Ryan.

“Special care should be taken by a county board member seeking this appointment to not use the power and influence of their current position to obtain support from their fellow board members,” Birkett wrote in a Nov. 30 memorandum to the board.

Robert Schillerstrom wants another opinion.

Schillerstrom, whose term as county board chairman ended Monday night, was in court hours earlier to ask Chief Judge Stephen Culliton to appoint a special state's attorney to provide legal advice to the county board until Birkett's successor is chosen.

The hearing was continued until Wednesday to give Schillerstrom and Birkett time to provide written responses to several questions Culliton wants them to answer before a ruling can be made.

Schillerstrom said during Monday's hearing that “time is of the essence” because Birkett will be sworn in Dec. 13 as an appellate judge. New board Chairman Dan Cronin has said that he hopes to pick Birkett's successor on that day. County board members then are expected to vote on Cronin's pick.

But because county board members Pat O'Shea and John Curran are among the seven candidates hoping to replace Birkett, the board wants legal advice on how it should proceed.

Schillerstrom is questioning whether Birkett should be offering that advice. He claims Birkett has a “personal interest” in the selection process because three members of his staff have applied to replace him.

Birkett insists his legal opinions aren't influenced by his preference for any individual.

In his memorandum to the board, Birkett cited the opinion Ryan wrote in 1994.

“As stated by former State's Attorney Ryan,” Birkett wrote, “a board member seeking this appointment should not participate in the deliberation process and should resign his or her position after nomination, but before deliberation.”

Schillerstrom said there are “a variety of opinions out there” on the issue. That doesn't change the fact that most of the board members want further guidance on ”a very complicated legal matter.”

“There's still many, many questions as to what a board member can and cannot do and what constitutes deliberations,” he said. “Those are some of the answers that we need.”

A special meeting is expected to be held on Dec. 13 so the board can vote on Cronin's pick to lead the state's attorney's office for the remainder of Birkett's term.

If the county board is unable to agree on Birkett's successor on that day, Culliton will pick an interim state's attorney.