Breaking: Attorney Says Let the People Decide on Dual Elected Duty
A referendum is the way to move forward on whether or not a city official can hold more than one elected office at a time, attorney says.
The citizens of Elmhurst must decide whether officials should be allowed to hold more than one elected position at a time.
That is the opinion of Jack Siegel, the attorney hired by the city of Elmhurst to investigate the matter.
The opinion, released Friday, states: "I conclude that the city could adopt an ordinance to prohibit its elected officials from holding any other elective office, but only if such ordinance was authorized by referendum."
The opinion is based on the fact that Elmhurst is a home rule municipality and, as such, derives its powers from the state Constitution, specifically Section 6 of Article VII.
"A home rule municipality shall have the power to provide for its officers their manner of selection and terms of office only as approved by referendum or as otherwise authorized by law … ," the section reads.
This issue has been a major topic of discussion in Elmhurst ever since Mayor Pete DiCianni declared he would retain his mayoral position if elected to the DuPage County Board.
This is not the first legal opinion on the issue. Back in January, DuPage County State's Attorney Robert Berlin issued an opinion stating the two offices are incompatible.
Elmhurst Patch blogger Tony Meneses was among the first to obtain the legal opinion Friday morning, and he was also among the first talking about it. Meneses, along with others, has been very vocal in his opinion that all the voters of Elmhurst should decide dual elected duty through referendum.
DuPage District 1 includes the majority of Elmhurst residents. But only those in District 2, in the southern portion of Elmhurst, can vote for or against DiCianni in the county election in November. Therefore, less than half of Elmhurst residents would have a say—via their vote for or against him—in his bid to seek two elected offices. A referendum would give all residents a voice.
If the City Council places a referendum on the November ballot and the voters decide they do not want officials holding two elected positions and, via that same ballot, DiCianni is elected to DuPage District 2, he would have to resign as mayor.
But what happens if the state legislature tries to enact laws allowing dual elected duty? Will that preempt home rule authority?
One state legislator, Sen. Don Harmon (D-39th, Oak Park) already has attempted twice to do just that. But Siegel's legal opinion seems to indicate that the state's powers are somewhat limited in affecting home rule decisions. He says:
"The power to limit or deny a home rule power by statute of the General Assembly must not only be approved by a 3/5 vote, but must contain an express statement to that effect."
He cites precedent that indicates the limitation must be "specific, clear and unambiguous."
The issue was first brought before the city's Finance, Council Affairs and Administrative Services Committee by 7th Ward Alderman Mark Mulliner last month. The committee will discuss the legal opinion at its next meeting at 7 p.m. Monday, June 25, and come up with a recommendation for the full City Council.
At the committee's last meeting, to "keep the process moving forward," Mulliner presented a rough draft of an ordinance that would pave the way for a referendum. Neither Mulliner, committee Chairman Steve Hipskind nor DiCianni were not immediately available for comment.
Committee Vice Chairman Kevin York said Friday he does not want to make any comments before the Monday meeting.
"Out of respect to what's going to happen on Monday and out of respect to Pete, I'd really prefer not to say anything at all at this time," York said. "I think it's the right thing to do."
He is expecting a large turnout.
"I think it will be an interesting meeting. I'll bet we'll be in the big room that night."