No. 3--03--1032

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2005

MODIFIED UPON DENIAL OF PETITION FOR REHEARING
JUSTICE McDADE delivered the opinion of the court:

In this case from the circuit court of Kankakee County, the defendant Reverend Elmer E. Wilson appeals from a determination that he improperly held two elected positions in the county, that of member of the Kankakee County Board and as board member of the Kankakee School District #111 (District 111). In the court below, the Kankakee County State's Attorney filed aquo warranto action against Rev. Wilson, seeking his ouster from the county board, and alleging that he held the position contrary to state law. Rev. Wilson was elected to the Kankakee County Board on November 5, 2002. On April 1, 2003, he was elected to the school board of District 111. He continues to hold both offices pending the resolution of this appeal. The county alleges that the defendant's occupancy of both offices creates an impermissible conflict of interest. On a motion for summary judgment, the trial court granted relief to the county, and removed Rev. Wilson from the County Board. He appeals. For the following reason, we agree that Rev. Wilson may not hold both positions at the same time. We must, however, modify the judgment since we find that Rev. Wilson must be removed from the school board rather than the county board.

ANALYSIS

The State alleges that Rev. Wilson is prohibited from holding the dual positions of county commissioner and school board member by the Public Officer Prohibited Activities Act (50 ILCS 105/0.01 et seq (West 2004)). Section 1 of the statute states that

"No member of a county board, during the term of office for which he or she is elected, may be appointed to, accept, or hold any office other than (I) chairman of the county board or member of the regional planning commission by appointment or election of the board of which he or she is a member or (ii) alderman of a city or member of the board of trustees of a village or incorporated town if the city, village, or incorporated town has fewer than 1,000 inhabitants and is located in a county having fewer than 50,000 inhabitants, unless he or she first resigns from the office of county board member or unless the holding of another office is authorized by law. Any such prohibited appointment or election is void. This Section shall not preclude a member of the county board from being selected or from serving as a member of a County Extension Board as provided in Section 7 of the County Cooperative Extension Law as a member of an Emergency Telephone System Board as provided in Section 15.4 of the Emergency Telephone System Act, or as appointed members of the board of review as provided in Section 6-30 of the Property Tax Code. Nothing in this Act shall be construed to prohibit an elected county official from holding elected office in another unit of local government so long as there is no contractual relationship between the county and the other unit of local government."  (50 ILCS 105/1 (West 2004)) (emphasis added).

We believe that the provision is dispositive in this case. The statute prohibits a member of a county board from holding any other office, except for several specifically enumerated circumstances not relevant here. The statute states that any such election is void. Therefore we find that the election of the defendant to the board of District 111 is void.

The defendant argues that the last sentence of the provision may be construed to allow him to hold both offices. The sentence states that "[n]othing in this Act shall be construed to prohibit an elected county official from holding elected office in another unit of local government so long as there is no contractual relationship between the county and the other unit of local government." (50 ILCS 105/1 (West 2004)). We do not believe that the provision changes the result in this case. According to the Illinois Constitution, a school district is not a "unit of local government." Ill. Const. 1970, Art. VII,