[EL] Differing salaries for different elected officials of the same body?

[Colin Smith]

All,

I don't often comment on the listserv, but I would be curious to know if
anyone has a view on this.  Assuming what has been reported is true -- and
I cannot independently verify this story's veracity -- it appears this
proposal would pay certain elective officers more than other elective
officers of the same body based upon the work experience that certain
elective office holders had before they were elected to office.

Any thoughts on the legal permissibly of this?  I would appreciate any
insight.  It is not for a client; it is for information/research purposes
only.

Thanks,

-Colin

# # #


*Two-tiered salaries for Sterling Township officials questioned*

*New schedule will pay incumbents, employees more than newcomers*

STERLING – Sterling Township officials have set a 4-year salary schedule
for elected officials that pays incumbents or current employees who are
elected to the board more than those new to the township – a move that
might not stand a legal challenge.

For example, one former and two current township employees are running for
supervisor on April 4. If either of the current workers are elected, their
starting salary will be $49,044 for the first year. If the former employee
is elected, he will be paid $30,500 – $18,544 less.

By the fourth year of the term, those numbers rise to $50,631 and $31,836.

Supervisor Matt Howze, who is not running for re-election, proposed the new
schedule in September because he thought township salaries needed to be
higher, Trustee Bill McGinn said, and that people with more experience
should be paid more, Trustee Ruth Stanley said.

Howze also thought paying less-experienced officials less money might save
the township some money, said Trustee Tom Ausman, who opposed the
two-tiered system.

The problem, said several attorneys – and Ausman – is that such a system
might not be legal, or at least constitutional: Elected officials are not
employees, and because of this, their salaries are based on the position,
not the person holding the position.

The fear is that paying newcomers less will discourage people from running
for office.

The township’s two-tiered system affects four of the six elected positions
– supervisor, assessor, road commissioner, and clerk. The treasurer and
trustee salaries remain the same all 4 years for either incumbents,
employees or newcomers.

The two current employees vying for Howze’s job are Finance Officer Angela
Schneider, who has been with the township nearly 10 years, and Building
Operations Manager Ted Harts, who has been with the township more than 5
years. Daniel Murray, who was an adviser to the township’s youth group from
2011 to 2014, is the other candidate.

Two people are running for highway commissioner. If incumbent Dana Stutzke
is re-elected, his salary will be $57,000; if challenger Mark Henson is
elected, he will be paid $30,500 the first year of the term.

Incumbents Clerk Frances Leal and Assessor Marcy Lawrence are running
unopposed. Leal will be paid $24,500 the first year, Lawrence $49,044. Had
they been newcomers, those salaries would be $19,500 and $30,500.

Trustees are paid a flat $260 a year; the treasurer $1,000 a year.  *(Typo
– it is $260 a month or $130 a meeting – we get $60 per meeting or on
average, $120 a month before deductions)*

Bryan E. Smith, an attorney who is executive director of Township Officials
of Illinois, could not cite a state law prohibiting such a system, but said
members have asked him many times in the past if creating such a salary
structure is allowable, and he always advises against it. Sterling Township
did not ask his advice, Smith said.

John M. Nelson, president of the Illinois Township Attorneys Association,
said he was not sure of the legality of the salary structure. He, too,
couldn’t cite a specific statute “that out-and-out prohibits it,” but his
opinion is it wouldn’t survive a court challenge: The salary is attached to
the office, regardless of who might hold that office.

“That would not stand up, and should not stand up, in the courts,” Nelson
said. “It obviously would have an advantage for either an incumbent or
township employee. It basically infringes on the rights of people to run
for political office and have equal benefits.”

He recommends board members take the issue before a judge, before a savvy
taxpayer advocacy group does it for them.

“If I were on the board, I would certainly have one of my township
attorneys file suit for declaratory judgment, to make sure that the larger
salary, if that’s what they intend, is the one that’s paid to everybody.”

Neither Smith nor Nelson knows of any township in the state with a similar
salary structure.

Howze declined Friday to detail any discussions about the new system, or
why the board chose to adopt it.

“Township officials have the right to set the compensation package,” he
said. “We didn’t see that it was a problem. If there is a challenge to it,
that challenge will then be worked out by the right individuals.”

According to minutes from the Sept. 30 township meeting, Howze “discussed
elected officials’ salaries with the board.” Oct. 12 minutes do not mention
the issue; Oct 26 minutes note that Howze “gave board members a salary
proposal for them to look over. Salaries will be discussed at the next
meeting.”

At the next meeting, on Nov. 9, salaries were on the agenda as an action
item, and both schedules were approved.

The vote was two-fold: one for the higher-paying salary schedule, one for
the lower-paying one.

Ausman did question the need for salary restructuring, and voted against it.

“The majority of the board felt that an incumbent or employee should get
more than a new person,” Ausman said Friday. “I feel a job should be worth
so much money, and not the person.”

McGinn also voted against the higher salary schedule, but only because he
thought the raises over the 4 years were excessive.

“I thought the current salaries were high enough,” he said.

Whether the system was legal or not was not something he considered. “I
don’t know about that,” McGinn said.

Trustee Don Harts, Ted Harts’ brother, was handling a family emergency and
was unavailable to comment Friday.

State law requires that the salaries of elected officials be set at least
180 days before the beginning of the term of office so that, presumably,
those setting the salaries won’t know or be influenced by those who will be
running.

In the case of the supervisor candidates, though, all three were
circulating petitions to run when the new salary structure was set, and
Howze and the other board members knew it, McGinn and Murray said.

Murray, who said he attends most township meetings, was there Nov. 9 when
the measures passed. He said he not only was concerned about the two-tiered
system – “You’re not saving any money anywhere” – but also about a lack of
discussion of the issue.

When Ausman asked before the vote why the board was considering two sets of
salaries, and why now, he was shut down, Murray said.

“They went right into closed session, came out and voted on it. There was
no discussion as to what was driving it.”

The Nov. 9 meeting minutes do show the the board went into executive
session, then voted on the salaries and other issues.

Ausman said he does not remember discussing the salaries in that session,
but did express his opposition to the restructuring before the vote.

He said most of the discussion was done in a board retreat, which was open
to the public, and held before the November meeting.

The attorney general has offered its opinion that even discussion of
salaries for elected officials must be done in an open meeting. The Open
Meetings Act allows salary schedules for employees to be held in closed
session, but elected officials do not fall under the definition of
employee, and so all discussion, deliberation and the final vote on
salaries must be done in the open.
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