COMPATIBILITY OF OFFICES
AND
CONFLICTS OF INTEREST
by John T. Brady, Peoria, Illinois
prepared for the Illinois Association of Fire Protection Districts
Springfield, Illinois, June 30, 2001
copyright ©2001, all rights reserved
A. WHAT ARE WE TALKING ABOUT AND WHY IS IT IMPORTANT?
1. WHAT FIRE DISTRICT PERSONNEL ARE INCLUDED?
2. "TRUSTEES" A trustee is a "fiduciary". This means that the trustee must put the welfare
of the fire district above the trustee's own personal needs and welfare. In general, a person may not be
a trustee if the person has interests, or holds any other position, which would give the person divided loyalties,
and put the person in a circumstance where these other interests might conflict with the interests of the fire
protection district.
Trustees are "public officials".
3. WHAT IS "INCOMPATIBILITY"? In general terms, "incompatibility" means that one person
cannot simultaneously hold two public offices, in circumstances in which the duties of one office may interfere
with the full and faithful performance of the duties of the other. See, for example, People ex rel. Teros vs.
Verbeck, 155 Ill App. 3d 81.
If an "incompatibility of office" is found to exist, the effect is to cause a forfeiture of the first
office held.
B. COMPATIBILITY OF OFFICES: Is there the potential that the interests of one office could take a "second
seat" to the interests of the other?
1. OFFICES ARE INCOMPATIBLE WHEN:
a. "The constitution or a statute specifically prohibits the occupant of either one of the offices from
holding the other..."
EXAMPLE: "... no township official who is eligible to vote on ... appointment [of the fire district trustee]
shall be eligible for the appointment ...." (70 ILCS 705/4).
See, also, the "Public Officer Prohibited Activities Act" (50 ILCS 105/0.01 and following).
or where
b. ".... because the duties of either office may conflict, the holder of one cannot, in every instance,
properly and faithfully perform all the duties of the other ...".
EXAMPLE: "Incompatibility may arise because one of the offices is subordinate to the other ..." /
(Illinois Attorney General Opinion I-01-025).
2. HOW DO WE DETERMINE "COMPATIBILITY"?
a. Court decisions
b. Opinions of fire district attorneys and private attorneys
c. Illinois Attorney General Opinions (formal and informal)
(1) Where to find them (after 1994): www.ag.state.il.us
(2) "Index of Compatibility of Offices" - incomplete
Fire protection district trustee and fire chief (I - 01 - 025)
Fire district trustee and volunteer firefighter (I - 93 - 013)
Fire district trustee and paid firefighter (I -97 - 024)
Fire district trustee and financial institution (81-025)
Fire district trustee and town clerk ( #169 / 1-23-1950)
Fire district trustee and township highway commissioner
(I -00 - 39)
Fire district trustee and school board member (I - 95 - 003)
Fire district trustee and village (or township) trustee
(I - 93 - 037), (I - 89 - 043) and (I - 89 - 023)
Fire district trustee and community college trustee
(I - 93 - 037)
Volunteer F. D. treasurer and village trustee (I 90 - 060)
C. CONFLICTS OF INTEREST:
1. FIRE PROTECTION DISTRICT ACT: While other sections of Illinois law also address the issue, the "Fire
Protection District Act" clearly states that there are certain kinds of things that prevent a person from
serving as a fire district trustee: "No trustee or employee of ... [a fire] district shall be directly or
indirectly interested financially in any contract work or business or the sale of any article, the expense, price
or consideration of which is paid by the district... (70 ILCS 705/4 [a][4]).
In addition to certain other specified exceptions, the Act provides that "... nothing ... prohibits the
appointment ... of any person or trustee ... whose only interest in the district is as an owner of real estate
in such fire protection district ..." (705/4 (a)(4).
The "limited exceptions" contained in the statute deal with various circumstances, which can be briefly
summarized as follows:
(a) A person is allowed to serve as a trustee if her or his ownership interest in a business that provides goods
or services to the district is less than a 7.5% ownership of the business, and certain procedural requirements
are followed; and
(b) A trustee or employee may provide goods and services if the value of the contract does not exceed $1,000.00,
and the total amount of all contracts with the vendor do not exceed $2,000.00 in a fiscal year, and certain procedural
requirements are followed; and
(c) Certain kinds of contracts with public utilities, and the deposit of monies belonging to the district in
local financial institutions, are allowed, if certain procedural requirements are followed.
See 70 ILCS 705/4(b).
However, it is important that each trustee periodically and carefully review these "conflict of interest"
provisions, since "... any officer or employee who violates this ... [law] is guilty of a Class 4 felony and
in addition ...any office held by such person ... shall become vacant..." (70 ILCS 705/4([e]).
2. PUBLIC OFFICIALS PROHIBITED ACTIVITIES ACT: Because they are "public officials", fire district
trustees are also subject to the prohibitions of the "Public Officers Prohibited Activities Act" (50
ILCS 105/0.01 and following). This law prohibits any activity by a trustee where the trustee would have either
a direct or indirect financial interest in the transaction. Importantly, this law does not require actual profit
by the trustee, and the Act does not require a showing of intentional wrongdoing by the trustee, for there to be
a violation of the act. See Miller vs. County of Lake, 79 Ill 2d 481, 38 Ill Dec. 798, 404 N.E. 2d 222 (1980).
Even an "incidental personal benefit" is sufficient to trigger the "conflict of interest" prohibitions
contained in the Act. See People vs. Scharlau, 141 Ill. 2d 180, 152 Ill. Dec. 401, 565 N.E. 2d 1319 (1990).
3. ILLINOIS CRIMINAL CODE: There are additional provisions of the Illinois "Criminal Code" that also
apply to fire district trustees. Among other things, the "Criminal Code" contains sections dealing with
"Official Misconduct" (720 ILCS 5/33-3), "Tampering With Public Records" (720 ILCS 5/32-9),
"Bribery" (720 ILCS 5/33-1), "Failure to Report a Bribe" (720 ILCS 5/33-2), and "Interference
with Public Contracting" (720 ILCS 5/33E).
4. "GIFT BAN ACT" (5 ILCS 425): In general, the law prohibits officials and employees (including volunteers)
from receiving almost anything of value from a "prohibited source". A "prohibited source" is
any person or entity who is seeking official action by the district, or who does (or seeks to do) business with
the district, or whose activities are regulated by the district, or who has interests that may be substantially
affected by the performance of duties by district representatives. Certain kinds of gifts are exempted from the
application of the Act (offering and accepting gifts of nominal value.
All employees (including volunteers) are covered by the Act. Non-salaried appointed or elected officials may
be exempted from the application of the law. Gifts from a "prohibited source" to a spouse and certain
other family members are included in the ban.
Trustees and district personnel need to recognize that a knowing violation of the Act can result in a fine of
up to $5,000.
5. GOVERNMENTAL ETHICS ACT (5 ILCS 420/4A-101): Certainly, there can be lots of circumstances which might influence
a trustee to put self-interest above the public interest. However, financial advantage is likely one of the most
potent. Because of this, there is a special disclosure that public officials, including fire district trustees,
must make, on an annual basis, regarding their financial or "economic" interests.
No later than May 1 of each year, each trustee (and each employee whose compensation from the district exceeds
a stated minimum) must file with the county clerk of the county in which the principal office of the fire district
is located a "Statement of Economic Interest" (5 ILCS 420/4A-107). Trustees newly appointed to the position
must also file such a statement at the time of their appointment (5 ILCS 420/4A-105[c]), and candidates for election
to the office of fire district trustee must also file (5 ILCS 420/4A-105[a]).
|
Number |
Description |
| I-93-013 | GOVERNMENTAL ETHICS & CONFLICT OF INTEREST: Fire Protection District Trustee Serving as a Volunteer Firefighter |
| I-97-024 | GOVERNMENTAL ETHICS & CONFLICT OF INTEREST: Fire Protection District Trustee Serving as a Firefighter |
| 93-014 | GOVERNMENTAL ETHICS & CONFLICT OF INTEREST: Officer Voting on Contract with Wife's Firm |
| 97-005 | GOVERNMENTAL ETHICS & CONFLICT OF INTEREST: Spouse of Member of State Board of Education as Subcontractor on Board Contract |
| I-01-024 | GOVERNMENTAL ETHICS & CONFLICT OF INTEREST: Election of Officer Having a Pre-Existing Contract with a School District |
| I-01-025 | COMPATIBILITY OF OFFICES: Fire Protection District Trustee and Fire Chief of Fire Protection District; Drainage District Commissioner and Township Highway Commissioner |
| I-00-039 | COMPATIBILITY OF OFFICES: Fire Protection District Trustee and Township Highway Commissioner |
| I-95-003 | COMPATIBILITY OF OFFICES: Fire Protection District Trustee and School Board Member |
| I-93-037 | COMPATIBILITY OF OFFICES: Village Trustee and Fire Protection District Trustee; Township Clerk and School Board Member; Fire Protection District Trustee and Community College Trustee |
| I-90-060 | GOVERNMENTAL ETHICS & CONFLICT OF INTEREST: Village Trustee Serving as Treasurer of Volunteer Fire Department |