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When is holding multiple public offices verboten? A recent appellate case, and AG opinions over the years, illustrate that officeholders won't always be permitted to serve two masters.

ISBA Local Governmental Late Section Council newsletter editor John Brechin, who in past years has also served as chair of the section council, discusses a recent case from the Illinois Appellate Court holding that the offices of village trustee and township park district commissioner are incompatible, requiring the removal of the officeholder from the earlier elected position. The case is Barsanti v Scarpelli, 2007 WL 209977 (2d D 2007).

Brechin's article, which highlights the opinions of the Illinois Attorney General as an important resource for such ethical issues that arise in governmental contexts, appears in the March 2007 issue of the Local Government Law Section newsletter.

The Scarpelli case

As Brechin summarizes, Scarpelli was first elected to the position of Dundee Township Park District Commissioner in 1999. In 2003, he was elected a trustee of the Village of East Dundee. In April 2005, he was reelected to the position of park district commissioner. Four months later, the state filed an action in quo warranto, seeking Scarpelli's removal from his village trustee position because of a fundamental conflict of interest between the two offices.

In a motion for summary judgment, the state argued that the two offices were incompatible because the large number of possible relationships between the two creates too much potential for their duties to conflict. In support of its motion, the state submitted evidence of Scarpelli's actions and abstentions in connection with several intergovernmental agreements and other matters between the village and park district.

Scarpelli objected, arguing, among other things, that his votes and recusals cited by the state were over minor matters and caused no harm to the public. The trial court agreed with the state, entering summary judgment in its favor. Scarpelli appealed.

The appellate court explained that two public offices are incompatible when the performance of the duties of one interferes with the performance of the duties of the other. Incompatibility may occur when one office is superior to the other in some, even if not most, of its important duties, so that exercising those duties might conflict, to the detriment of the public, with exercising some of the important duties of the other office.

The court found that Scarpelli's need to recuse himself from a vote on a proposed intergovernmental agreement between the village and the park district that village officials described as "critical" and requiring "immediate" attention demonstrated the incompatibility of the two positions. In so holding, the court emphasized the disservice to the public interest "whenever an elected official must abstain from a vote because to vote would conflict with his duties in another elected office" (ld at *9), citing not only prior Illinois case law but also language from a New Jersey court that two positions will be incompatible if their duties might conflict even on rare occasions.

Which positions are and aren't compatible?

In his article, Brechin compiled a helpful table showing informal opinions of the Illinois Attorney General as to whether certain positions are compatible or incompatible. He also summarizes formal opinions in which the attorney general has made such determinations.

By way of example, Brechin notes that the attorney general has found that the offices of count)' board member and school hoard member are incompatible because of the county's statutory authority to approve grants for school districts. The offices of township assessor and member of a city zoning board of appeals, however, are not incompatible.

Brechin also notes that formal attorney general opinions from 1992 to the present, together with an index, are available on the AG's website at html)://www.illinoisattorneygeneraopinions/index.html. ISBA has published a compilation of informal Attorney General Opinions issued between 1987 and 2002 which is available for purchase.
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Title Annotation:Illinois
Author:Gunnarsson, Helen W.
Publication:Illinois Bar Journal
Date:Apr 1, 2007
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