Judge rules against McHenry Township Highway Commissioner's challenge against huge tax levy cuts

A judge ruled against McHenry Township Highway Commissioner Jim Condon in a lawsuit Monday brought against the local government's trustees over their decision to cut road district property tax levies by about 30% this month.

With the decision by 22nd Judicial Circuit Associate Judge Kevin G. Costello, the township road district's total tax levy of $2,095,000 approved by the trustees will for now remain below the $3 million levy Condon originally sought.

The highway commissioner filed the lawsuit against the township's board of trustees last week after a motion to pass a levy far smaller than Condon's $3 million proposal carried 3-1 with the support of Trustees Bob Anderson, Steve Verr and Mike Rakestraw, the same trio that denied McHenry Township Supervisor Craig Adams from participating in the same meeting remotely despite a diagnosis of COVID-19 that had lasted for weeks.

"We're doing things that are very positive," Condon said of the McHenry Township Road District after the levy was cut. The trustees, he said, "choose to be close-minded."

Costello, in denying a temporary restraining order requested by Condon, ruled the highway commissioner solely has the power to levy taxes in order to pay road district officials, but that the board plays a role in approving the levies needed for road and bridge maintenance and other expenses.

"The road district's profligate, wasteful and wild spending schemes just got derailed by a competent judge," Verr said.

Illinois statutes regarding how township road districts are operated, according to Condon's Woodstock-based lawyer Jamie R. Wombacher, leave the property tax levy up to the elected highway commissioner alone to determine, and says the township board must approve the proposed levy.

But the township board, represented in Monday's hearing by attorney Andrew J. Mertzenich of the Woodstock-based Prime Law Group, disagreed with that interpretation.

"If the board of trustees has the power to approve the levy, it is our position they also have the power to disapprove of the levy," Mertzenich said in an interview.

Wombacher argued the board has the ability to check and balance the highway commissioner financially because it is the trustees who have the clear power to set the township road district's budget, but not the levy.

She also said she was "at a loss" as to how Prime Law Group could represent the township board in the matter because McHenry Township's attorney James Militello, of Prime, suggested at the government's meeting this month, before the trustees cut the levy, that a lawsuit could result from that action due to the law placing the responsibility to determine the levy on the highway commissioner.

Militello has recently argued another angle involving local township consolidation attempts.

He is representing both the McHenry and Nunda township road districts in a different case awaiting an appellate court ruling. In that complaint, Militello has argued a state law, sponsored by outgoing Rep. David McSweeney, a Republican from Barrington Hills, is unconstitutional because it allows voters in McHenry County and nowhere else in the state to decide on ballot measures that propose abolishing townships and their associated road districts.

While that case was also dismissed by Costello this year, Militello has appealed the decision, which, if overturned, could potentially take township abolition off the table locally, at least temporarily. The law lays out the transfer of township duties and assets would take place from a township to the county, should a township get abolished by local voters.

McHenry County on Monday also announced in a news release it is analyzing what its exact responsibilities would be if voters in April decide to dissolve Algonquin Township, another local government that was the target of a petitioning effort to put the measure on spring ballots led by former county board chairman Jack Franks and McHenry County State's Attorney Patrick Kenneally.

County staff expect to be ready with a report on what would happen if Algonquin Township is abolished by February, similar to an analysis it performed for the McHenry Township when it was the subject of an elimination ballot measure that was soundly defeated this year.

"There are many policy questions that the county board will need to take up should Algonquin Township's voters opt for dissolution. Through this report, county board members will have an understanding of operational and administrative considerations should the voters choose this route," Deputy County Administrator Scott Hartman stated in the release.

The tax levy cut by the McHenry Township trustees was the latest example of a majority on its board trying to make big adjustments to township finances in an attempt to downsize the government. Earlier this year, the board also sliced the pay of township elected officials, including themselves, as well as Condon's and Adams' salaries by nearly half.

Both Condon and Adams have indicated respectively to a reporter and a colleague at the township that each intends to seek a new term even with the lower pay.

That salary decrease was followed by the township board filing a different lawsuit that was also dismissed by Costello this fall that alleged McHenry County Clerk Joe Tirio was wrong to keep a ballot measure asking to abolish the township from being sent to voters this fall. The clerk cited state law that said the same ballot question cannot be asked twice in 23 months, and an abolition proposal was defeated soundly by McHenry Township voters in April's election.

McHenry Township's trustees have also appealed that ruling, and are awaiting a decision.

Furthermore, the McHenry Township Road District's tax revenue may not be the only aspect of the local government set to diminish. The entire organization could be voted out of existence in the spring after the township's board of trustees decided to ask voters in the coming April election to abolish just the road district, without getting rid of the rest of the township structure; similar measures were passed in November by voters in three other townships in Illinois.

Wombacher and Condon are considering whether to file an appeal on an emergency basis to a higher court, since the McHenry Township road district's levy needs to be filed with the county clerk's office before the end of this month.

Dan Aylward, the clerk for the McHenry Township board of trustees who was also named as a defendant in Condon's lawsuit heard on Monday, said he was happy the highway commissioner challenged the trustees over the levy being cut. Aylward opposed the large reduction.

"This is the first time I was glad to be given a court summons," Aylward said.