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Dianis v. Waenke

JUNE 6, 1975.

JOHN DIANIS, MAYOR OF THE VILLAGE OF WAUCONDA, PLAINTIFF-COUNTER-DEFENDANT, APPELLEE-CROSS-APPELLEE,

v.

ANNETTE WAENKE ET AL., TRUSTEES OF THE VILLAGE OF WAUCONDA ET AL., DEFENDANTS-COUNTER-PLAINTIFFS, APPELLEES-CROSS-APPELLANTS. — (JOSEPH KIDD, TRUSTEE OF THE VILLAGE OF WAUCONDA, DEFENDANT-COUNTERDEFENDANT, APPELLANT-CROSS-APPELLEE.)



APPEAL from the Circuit Court of Lake County; the Hon. HARRY D. STROUSE, JR., Judge, presiding.

MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:

The mayor (who may also be referred to as president) of the village of Wauconda, John Dianis, instituted a declaratory judgment action against the village and its six trustees, seeking a declaration that a certain ordinance and resolution enacted into law by the Board of Trustees over his veto were invalid as contrary to the provisions of article III of the Illinois Municipal Code dealing with officers. (Ill. Rev. Stat. 1973, ch. 24, par. 3-1-1 et seq.) The trustees, with the exception of trustee Joseph Kidd, filed a counterclaim praying that the ordinance and resolution attacked by the mayor, as well as two other ordinances, be declared valid. Trustee Kidd has appealed and the other five trustees have cross-appealed from the order of the trial court which, as will be more fully detailed below, adjudicated the validity of the ordinances and the resolution and which made certain related findings. Mayor Dianis, whose position on appeal is aligned with that of trustee Kidd, has not appealed from the order entered below but has filed a brief in this court as appellee-cross-appellee. Broadly stated, the instant dispute concerns the manner and method by which a village may lawfully secure legal counsel and a chief of police. The dispute centers upon whether these jobs may be filled by the joint vote of the Board of Trustees and the mayor or whether they must be filled by the appointment of the mayor with the advice and consent of the Board.

The background facts relative to the village legal counsel may be traced to the nomination by the mayor of one Wallace Dunn to the position of village attorney. It appears that under the then existing ordinances of the village of Wauconda the mayor had the power to appoint the village attorney with the advice and consent of the Board of Trustees. The nomination of Dunn was apparently disapproved by the Board of Trustees and Mayor Dianis stated that he would make successive 30-day appointments of Dunn as village attorney for the next 4 years. Beginning on August 7, 1973, and continuing until April 2, 1974, Mayor Dianis did make such successive 30-day appointments. On December 4, 1973, Mayor Dianis nominated Dunn as permanent village attorney, but on February 4, 1974, the Board disapproved the appointment.

On February 5, 1974, the Board passed Ordinance 1974-0-1 which became effective upon a 5-1 vote (trustee Kidd opposing the measure), overriding the mayor's veto. This ordinance amended the Municipal Code of the village by abolishing the office of village attorney for the village of Wauconda. Subsequently, the Board of Trustees passed Ordinance 1974-0-2, and it also became effective by a 5-1 vote (trustee Kidd opposing the measure), overriding the mayor's veto. This ordinance amended the Municipal Code of the Village by providing, in relevant part, as follows:

"The president and the Board of Trustees, voting jointly, may employ an attorney or attorneys, as an independent contractor or as independent contractors, to represent or advise the Village on such legal matters as the Board of Trustees shall determine." (Emphasis added.)

On April 2, 1974, the Board adopted a resolution over the mayor's veto, employing the law firm of Overholser, Flannery, Dunlap & Graham, Ltd., as village legal counsel. This resolution also directed the law firm:

"* * * to attend the Village Board meetings so as to serve as counsel to the corporate authorities, to act as Village Prosecutor, to draw up Ordinances, contracts and other legal documents as requested by the corporate authorities, as well as to perform such other legal services as may be directed by the corporate authorities."

By resolution, this firm represents the village and the Board of Trustees in this action. The trustees also passed a resolution directing Dunn to turn over all village legal work to the Overholser firm by May 1, 1974, and also providing that Dunn's employment as village attorney was to cease as of that date. The firm then represented the village in various legal matters up to August 30, 1974, the date of the trial court's decree.

The background facts with respect to the position of chief of police are as follows. On or about May 6, 1973, the then chief of police of the village of Wauconda resigned and left the area. For some years prior to that date and continuously since then through the present time, the village of Wauconda, pursuant to statutory authority, had a Police and Fire Commission. Ordinance 602 of the village of Wauconda provided, in relevant part, as follows:

"The Board of Fire and Police Commissioners shall appoint all officers and members of the Fire and Police Departments * * * except that the office of Chief of Police and Chief of the Fire Department shall be appointed by the president of the Village of Wauconda with the advice and consent of the Board of Trustees of the Village * * *." (Emphasis added.)

On October 2, 1973, the mayor appointed one Captain John G. Now, Jr., as temporary acting chief of police for 30 days. On October 18, 1973, the Board adopted a motion disallowing the appointment, apparently due at that time to the absence of required psychological and polygraph test results. The results of said tests were subsequently submitted to the Board, during which time Captain Now remained acting chief of police. Mayor Dianis then appointed Now as chief of police and, on February 5, 1974, the Board disapproved the nomination.

On February 19, 1974 the Board passed Ordinance 1974-0-3 by a 5-1 vote overriding the veto of the mayor, amending the Village Municipal Code to provide that, instead of the mayor appointing the chief of police with the advice and consent of the Board, the chief of police should be appointed:

"* * * by the president of the Village of Wauconda and the Board of Trustees of the Village of Wauconda voting jointly * * *." (Emphasis added.)

The Mayor made successive appointments of Captain Now as temporary acting chief of police on March 5, April 2 and May 7, 1974. The Board of Trustees passed a resolution on June 18, 1974, stating that it did not consent to the appointment of Captain Now as permanent chief of police. From his initial appointment on October 2, 1973, to the present, Captain Now has been serving as acting chief of police, he being the highest ranking officer of the village police department.

The instant declaratory judgment suit was filed on May 7, 1974, by Mayor Dianis, as noted above, against the village and the six trustees seeking to declare Ordinance 1974-0-2 and the resolution passed pursuant thereto (employing Overholser, Flannery, Dunlap & Graham, Ltd.) invalid. The five trustees who supported the ordinances counterclaimed, seeking to have Ordinances 1974-0-1, 1974-0-2 and the aforesaid resolution and Ordinance 1974-0-3 declared valid. Trustee Kidd filed an answer to the mayor's complaint in which he admitted the allegations contained therein and further responded to the counterclaim by ...


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