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Brown v. Kirk

OCTOBER 20, 1975.

CAMELLA BROWN ET AL., PLAINTIFFS-APPELLANTS,

v.

FRANK KIRK, DIRECTOR OF THE DEPARTMENT OF LOCAL GOVERNMENT AFFAIRS, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of St. Clair County; the Hon. ROBERT L. GAGEN, Judge, presiding.

MR. JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:

Plaintiffs Brown, Jackson, Mayes and Stewart, tenants of the East St. Louis Public Housing Authority, filed an action for declaratory relief on their own behalf and on behalf of the class consisting of all individuals who are or will be tenants of the Authority. The complaint prayed that the circuit court declare that relevant conflict-of-interest statutes (Ill. Rev. Stat., ch. 67 1/2, par. 5, and Ill. Rev. Stat., ch. 102, par. 3) do not preclude low-income public housing tenants from serving as commissioners on the Board of Commissioners of the Housing Authority in which they reside by reason of their status as tenants. The plaintiffs also prayed that the court declare that to deny the class eligibility is an invidious discrimination in violation of the equal protection clause of the fourteenth amendment of the United States Constitution. After submission of briefs and oral argument on the above issues, the court entered judgment for the defendant finding that plaintiffs were precluded from serving as commissioners by reason of the above statute.

Our consideration of the conflict-of-interest issue leads us to conclude that the cause must be reversed. We therefore do not reach plaintiffs' constitutional argument.

The mayor of East St. Louis, the presiding officer of the city, is authorized to appoint a commissioner, subject to the approval of the Department of Local Government Affairs, at the expiration of the term of each commissioner or in the event of a vacancy. (Ill. Rev. Stat., ch. 67 1/2, par. 3; ch. 127, par. 63b14.3.) Section 3 of the Housing Authorities Act (Ill. Rev. Stat., ch. 67 1/2, par. 3) requires that each of the five commissioners be a resident of the area of operation of the housing authority, not be a member of the defendant department, and that no more than two individuals who are public officials serve as commissioners. In May, 1970, Charles Franklin, a tenant of the Housing Authority, was appointed to a two-year term as commissioner. He has served his term in that office.

On December 11, 1972, the mayor nominated Dorothy Holmes, also a tenant of the Housing Authority. The nomination was pending as of September 6, 1973, when the Attorney General of Illinois issued an opinion that section 5 of the Housing Authorities Act (Ill. Rev. Stat., ch. 67 1/2, par. 5) is to be interpreted to exclude tenants of a public housing project from eligibility status to serve as commissioners of their housing authority. The defendant therefore withheld approval of Holmes and took the position that an eligible non-tenant replacement be found for Charles Franklin. The defendant also decided that the general conflict-of-interest statute (Ill. Rev. Stat., ch. 102, par. 3), in addition to section 5 of the Housing Authorities Act (Ill. Rev. Stat., ch. 67 1/2, par. 5), barred a tenant from serving as a commissioner.

The Housing Authorities Act (Ill. Rev. Stat., ch. 67 1/2, par. 1 et seq.) contains its own conflict-of-interest provision:

"§ 5. No commissioner or employee of an authority shall acquire any interest direct or indirect in any project or in any property included or planned to be included in any project, nor shall he have any interest direct or indirect in any contract or proposed contract for materials or services to be furnished or used in connection with any project. If any commissioner or employee of any authority owns or controls an interest direct or indirect in any property included in any project, which was acquired prior to his appointment or employment, he shall disclose the same in writing to the Authority and such disclosure shall be entered upon the minutes of the Authority." (Ill. Rev. Stat. 1973, ch. 67 1/2, par. 5.)

There are no reported Illinois judicial decisions construing the statute. The Attorney General construed the statute in the following manner:

"It is a cardinal rule of construction of Illinois statutes that a statute must be construed so as to ascertain and give effect to the intention of the General Assembly as expressed in the statute (Lincoln National Life Insurance Co. v. McCarthy, 10 Ill.2d 489). Courts will apply to words appearing in legislative enactments the common dictionary meaning or commonly accepted use of the words unless the words are otherwise defined by the General Assembly. (Bowes v. City of Chicago, 3 Ill.2d 175.) The word `interest' is defined in Webster's New International Dictionary, Second Edition, as being a right, title, share or participation in a thing. Certainly a lease would be a share or participation in the housing project. Statutes should be read according to the natural import of language, without resort to subtle or forced constructions. (People v. Shader, 326 Ill. 145.) I am, therefore, of the opinion that section 5 of the `Housing Authorities Act' prohibits and precludes a tenant (even under a pre-existing lease or rental agreement) from being a commissioner of that Authority.

A tenant in a housing project receives a certain economic advantage. He receives his housing and pays his rent according to his rent according to his ability to pay. It would be contrary to the spirit and intent of the `Housing Authorities Act' if a tenant (even under a pre-existing lease or rental agreement) could also be a commissioner of that Authority. The spirit or intention of the law prevails over the letter thereof. (U.S. Industrial Alcohol Co. v. Nudelman, 375 Ill. 342; People v. Dear, 286 Ill. 142.)" Ill. Atty. Gen. Op. File No. NP-612, 1973.

The precise issue in this case was decided by the Supreme Court of Connecticut in Housing Authority v. Dorsey (1973), 164 Conn. 247, 320 A.2d 820. Construing a provision identical to section 5 of the Housing Authorities Act (Ill. Rev. Stat., ch. 67 1/2, par. 5) the court held that a tenant of a housing authority was precluded from serving as a commissioner of the authority because such service would create a conflict of interest.

The defendant, Kirk, also decided that a tenant was barred by the general conflict of interest statute:

"§ 3. No person holding any office, either by election or appointment under the laws or constitution of this state, may be in any manner interested, either directly or indirectly, in his own name or in the name of any other person, association, trust or corporation, in any contract or the performance of any work in the making or letting of while such officer may be called upon to act or vote. * * ...


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