A letter from the Mullen Law Firm at the Westside Justice Center in Chicago is casting doubt on the legality of the final meeting of the 80th Evanston City Council and the first meeting of the 81st City Council, scheduled for 4:30 p.m. and 7:30 p.m. respectively on May 10.

The letter, from attorney Ed Mullen, was sent via email on May 7 to the six people who will be new faces at the City: Mayor-Elect Daniel Biss, City Clerk-Elect Stephanie Mendoza, and Aldermen-Elect Clare Kelly, Jonathan Nieuwsma, Bobby Burns, and Devon Reid.

Mr. Mullen writes, “I have been asked to provide you with a legal opinion as to whether the City of Evanston’s scheduled City Council meetings on May 10, 2021, wherein the outgoing City Council is scheduled to meet and conduct business at the first meeting [scheduled for 4:30 p.m.], followed by a second meeting [scheduled for 7:30 p.m.] where the newly elected City Council will be sworn in to begin their terms, complies with the Illinois Municipal Code.”

The agenda of the 4:30 p.m. meeting contains several significant items on which members of the current, or 80th, City Council will vote.

These include the lease of the Harley Clarke mansion, changes to the City’s leaf-blower ordinance, approval of the contract for selling water to Skokie, approval to begin to negotiate the sale of the City-owned property on Central Street that formerly housed the North Branch Library, the approval of meeting dates for a public hearing and a Joint Review Board meeting about the proposed Fifth Ward tax-increment financing (TIF) district, and two items that remove citizen input from public processes: proposed change in the City’s Board of Ethics procedures and certain special use processes.

A story about the proposal regarding the Board of Ethics can be found here. A story about turning certain decisions about new businesses can be found here.

The agenda for the 7:30 p.m. meeting lists the administration of the oaths of office, remarks, and call of the wards.

Mr. Mullen says his legal opinion is that the 4:30 meeting of the outgoing City Council – the 80th – would violate Section 5/3.1-10-15 of the Illinois Municipal Code if the newly elected City Council members are not sworn in at that meeting to begin their terms of office then.

His letter states, “Section 5/3.1-10-15 of the Illinois Municipal Code provides that: ‘The terms of elected municipal officers shall commence at the first regular or special meeting of the corporate authorities after receipt of the official election results from the county clerk of the regular municipal election at which the officers were elected, except as otherwise provided by ordinance fixing the date for inauguration of newly elected officers of a municipality.’”

Since the City has no ordinance explicitly specifying the inauguration date for City officials after the first regular meeting of the City Council, Mr. Mullen’s letter said, the Illinois Municipal Code applies and  the new City officials should be sworn it at the first meeting, at 4:30 p.m. on May 10.

Doing so would allow the newly elected alderpersons (an ordinance allowing a gender-neutral term to replace “alderman” is also on the agenda) to vote on those and other agenda items.

In response to Mr. Mullen’s letter, Corporation Counsel Nicholas Cummings wrote to members of the 80th and 81st City Councils and both the newly elected and retiring City Clerk, “… the terms of the Council Members of the 80th City Council do not expire until the end of four years and their replacements are both elected and qualified.”

His letter also said there may be “outstanding questions regarding whether any member is indebted to the City or if there are any prior convictions for certain crimes and no oath has been given.”

Mr. Cummings referred the RoundTable to Section 1-5-2 of the City Code, “Qualifications for Alderman.” The Section reads as follows:

  • No person shall be eligible to the office of Alderman:
  • (A) Unless he/she is a qualified elector of the City and has resided therein at least one year next preceding his/her election;
  • (B) Unless he/she resides within the ward for which he/she is elected; 12
  •  (C) If he/she is in arrears in the payment of any tax or other indebtedness due the City; or
  • (D) If he/she has been convicted in any court located in the United States of any infamous crime, bribery, perjury, or other felony.
  • (E) Those exceptions to the above residency requirements based on military service, as set forth in 65 ILCS 5/3.1-10-5, shall apply. Except for the position of Acting Mayor or Mayor Pro Tem, no Alderman shall be eligible to any office of which the salary is payable out of the City Treasury, if, at the time of his/her appointment to such an office, he/she is a member of the City Council, pursuant to 65 ILCS

Mr. Cummings said in his letter he believed that a court would uphold any actions taken by the 80th (current) City Council, should they be challenged in court. He added that Ninth Ward Alderman Cicely Fleming has made a reference to the Rules Committee to set an inauguration date for newly elected City officials.

 

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  1. I am a lawyer, and I agree with Mr. Mullen as well as Ms. Hughes. The law says that the new officers’ terms start at the next meeting after the county clerk certifies results. That meeting is tonight. A fundamental principle of interpreting laws is to first look at the plain language. Here the plain-English reading is that tonight is Day 1 for the new officers, not a holdover mayor and Council. The law doesn’t say that terms start “at the tail end of the next meeting” or “after the lame-duck officers conduct business,” and there’s no reason to read that into the statute. The Corporation Counsel’s statement that a court would uphold actions of the outgoing Council is based on a lone 1990s case from downstate about a third-party contractor’s right to sue, and even in THAT case the court didn’t say the holdover Council acted properly. What the court held was that the actions of the outgoing council, although not legal “de jure” (as a matter of law), had enough facial validity to allow the contractor to sue after the incoming Council then reversed the lame ducks’ action.

    A government should not take sketchy, facially invalid action just because it might eventually stand up in a lawsuit. Faced with a choice between an intuitive path no one could challenge — i.e., swearing in new officers at the beginning of the meetings tonight — or taking a legal position requiring mental gymnastics that could land the City in court, why choose the latter? There’s no recent precedent for the amount and magnitude of the questions on tonight’s agenda being considered by an outgoing Council and mayor, literally hours or minutes before half of them leave office.

    Why rush to act before a new Council is sworn in? Because a new Council might act differently? This is exactly why we have elections. A scramble to deprive the new Council of voting on major issues, by an outgoing group that now has no accountability to voters, subverts the basic principle of democracy.

  2. Why are former alderman voting this evening, it appears the new alderman are having their votes taken away, while, at the same time, being welcomed to city council, on their first day.
    Something is wrong in Kansas (Evanston), Dorothy…lol.

    I thought the former city council terms ended after 4 year around April 27th. Additionally, the ordinance states:
    The terms of elected municipal officers shall commence at the first regular or special meeting of
    the corporate authorities after receipt of the official election results. The results are already certified.

    Who’s watching out for the residents of Evanston while we sleep, while we raise families; many of us have no time to watch every step of city council, we trust that city attorneys and alderman follow the rules.

  3. It’s clear to me that the right thing to do is swear in the new alderpersons/City Clerk/Mayor FIRST and after that any items new or old can be addressed.
    I’m not a lawyer, but it seems strange and even unfair that the outgoing Council/Mayor would want to make decisions which are of great importance to the community, then sign off and not have to face the effects of these decisions. They’ve already scurried around doing this for the last several months; some might even say this is the busiest the council has been in the last 4 years. Let us say farewell to you.
    Then let the new council/mayor start on the huge amount of work they face. We can’t afford to waste any more of their time.