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Sampson v. Graves

Case Date: 03/31/1999
Court: 1st District Appellate
Docket No: 1-98-0655

Sampson v. Graves, No. 1-98-0655

1st District, MARCH 31, 1999

THIRD DIVISION

MARY ANN SAMPSON, as Alderman of the Sixth Ward of the City of Harvey; JOHN ARRINGTON, as Alderman of the Second Ward of the City of Harvey; ERIC KELLOGG, as Alderman of the Fifth Ward of the City of Harvey; and DARYL CRUDUP, as Alderman of the Third Ward of the City of Harvey,

Plaintiffs and Counterdefendants-Appellees,

v.

NICKOLAS GRAVES, as the Mayor of the City of Harvey,

Defendant and Counterplaintiff-Appellant.

 Appeal from the Circuit Court of Cook County

Honorable Robert V. Boharic, Judge Presiding.

JUSTICE CERDA delivered the opinion of the court:

Plaintiffs, Mary Ann Sampson, John Arrington, Eric Kellogg, and Daryl Crudup, aldermen of the City of Harvey, Illinois, brought a complaint seeking the compliance of the mayor, defendant Nickolas Graves, with certain Harvey ordinances. Defendant counterclaimed that Harvey ordinance No. 2992 unlawfully restricted his power as mayor. Ordinance No. 2992 gives one council member the "exclusive" authority, with approval of the entire council, including the mayor, to select and retain an outside attorney to assist aldermen. Defendant argues on appeal that the trial court erred in granting plaintiffs' motion for summary judgment on the counterclaim because defendant asserts that the ordinance was unconstitutional because it altered the form of the city's government without the use of a referendum. We affirm.

FACTS

Harvey is a home rule municipality that has a strong-mayor form of government, which is one of the forms of government provided for in article 6 of the Illinois Municipal Code (65 ILCS 5/6--1--1 et seq. (West 1996)) (the Code). Its city council consists of six aldermen and a mayor. 65 ILCS 5/3.1--40--5 (West 1996). On May 29, 1997, the council passed ordinance No. 2992. Harvey, Ill. Ordinance No. 2992 (eff. May 29, 1997). Defendant vetoed it, and on July 21, 1997, the council voted to override the veto.

The sections of ordinance No. 2992 that are relevant to this appeal are:

"WHEREAS, the City Council as the legislative body of the City of Harvey finds occasions have arisen presenting a conflict of interest for representation, consultation or assistance of aldermen by the Office of the Harvey Corporation Counsel; and
WHEREAS, the City Council as the legislative body of the City of Harvey finds that in order to efficiently perform its legislative duties as a home rule municipality that it is proper and necessary that city council members have the option to obtain legal consultation and representation, separate and apart, from the Office of the Corporation Counsel for the City of Harvey with the costs for these legal services to be paid by the City of Harvey.
NOW THEREFORE BE IT ORDAINED ***
Section 1: The Chairman of the Committee on Finance of the City Council, with the approval and concurrence of a majority of all members then holding office on the City Council, as set forth in the Illinois Municipal Code, 65 ILCS 5/3.1--40--40, shall have the exclusive authority to select and retain legal counsel, upon a request by a city council alderman for legal assistance, consultation and representation with respect to matters concerning, pertaining to and related to their official duties, responsibilities and activities as members of the City Council for the City of Harvey, Illinois.
Section 2: The legal counsel selected shall be independent of the Office of Corporation Counsel for the City of Harvey and shall report directly to the Chairman of the Committee on Finance and the city council alderman for whom legal services are provided. The legal counsel selected shall be paid on an hourly basis; and shall hold no term of office but shall be terminable at anytime or upon completion of the matter upon which representation, consultation or assistance is sought.
Section 3: The City Council shall provide an appropriation of funds in its annual appropriation ordinance to pay legal fees and costs incurred for any alderman who exercises the option to obtain legal consultation and representation separate and apart from the office of the Harvey Corporation Counsel as provided for in this ordinance. The legal counsel selected is required to submit invoices for legal services rendered directly to the Chairman of the Committee on Finance for review and will be paid upon approval and concurrence of a majority of all members then holding office on the City Council, as set forth in the Illinois Municipal Code, 65 ILCS 5/3.1--40--40." Harvey, Ill., Ordinance No. 2992 (eff. May 29, 1997).

There was no referendum that authorized the council to enact this ordinance.

On August 28, 1997, defendant Mayor Graves was granted leave to file his counterclaim for a declaratory judgment and injunctive relief. The counterclaim alleged that ordinance No. 2992 unlawfully restricted the power of the mayor. On February 9, 1998, the trial court granted plaintiffs' motion for summary judgment as to the counterclaim. Defendant appealed.

DISCUSSION

Mayor Graves argues on appeal that ordinance No. 2992 alters the relative powers of the mayor and aldermen by giving a single alderman exclusive authority to select and retain an attorney to provide legal assistance to aldermen in violation of the Illinois Constitution's requirement that a referendum be held to approve an alteration in the form of a municipal government (Ill. Const. 1970, art. VII,