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06/19/97 CHARLES S. BALDACCHINO AND ROBERT M. SROKA

June 19, 1997

CHARLES S. BALDACCHINO; AND ROBERT M. SROKA, INDIVIDUALLY AND ON BEHALF OF A MAJORITY OF THE ELECTORS OF THE TOWN OF MAINE, PLAINTIFFS-APPELLANTS,
v.
MARK THOMPSON, INDIVIDUALLY AND AS SUPERVISOR OF THE TOWN OF MAINE; CAROL TESCHKY, INDIVIDUALLY AND AS TRUSTEE OF THE TOWN OF MAINE; ROBERT PROVENZANO, INDIVIDUALLY AND AS TRUSTEE OF THE TOWN OF MAINE; PAMELA ANDERSON, ADMINISTRATOR OF THE TOWN OF MAINE; AND GARY WARNER, INDIVIDUALLY AND AS TOWN CLERK, DEFENDANTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE EDWIN M. BERMAN, JUDGE PRESIDING.

As Corrected June 26, 1997. Released for Publication August 5, 1997. As Corrected September 26, 1997.

Presiding Justice Wolfson delivered the opinion of the court. McNAMARA and Cerda, JJ., concur.

The opinion of the court was delivered by: Wolfson

PRESIDING JUSTICE WOLFSON delivered the opinion of the court:

When a township form of government is in place, who makes the decisions for the town -- the township board of trustees or the townspeople? Members of the Maine Township Board of Trustees (Board) thought they had the right to decide to build an addition to their town hall. Some of the town's residents did not think the Board should make that decision without the consent of the townspeople. In accord with the provisions of the Illinois Township Code, (Town Code or Code) (60 ILCS 1/1-1 et seq. (West 1996)),these residents gathered at the annual Town meeting and, as "electors," voted against the addition. This court must decide whether the townspeople had the authority to overrule the Board on this and other matters.

FACTS

The Town of Maine is organized as a township and, as such, is governed by the Illinois Township Code (60 ILCS 1/1-1 et seq. (West 1996)). On April 11, 1995, Maine held its annual town meeting in accord with section 30-5 of the Township Code. 60 ILCS 1/30-5 (West 1996). At the meeting, a slim majority of the Townships' electors (Electors) voted in favor of the following measures:

(1) To rescind the prior action of the Board of Trustees regarding the construction of an addition to the Town Hall and direct the Board to take no further action to construct such addition or to incur any further expenses therefore, unless approved by a majority of the Electors in a binding referendum;

(2) To direct the Board to transfer $467,000 from the General Town fund (building fund) to the Highway Department Reserve Contingency Fund to be utilized for flood control, or for tax abatement in the next fiscal year;

(3) To direct the Board to reimburse Trustee Ebert for legal expenses incurred in earlier litigation against Town Supervisor Thompson and Town Administrator Anderson;

(4) To direct the Board to place a cap of $300/month or $3,600/year, on expenses to public relations consultants and employees;

(5) To direct Town Clerk Warner to tape record all town meetings open to the public and make copies of the tape available within seven (7) days of the meeting;

(6) To direct the Board to implement a policy whereby members of the public are provided the opportunity to speak for a maximum of five (5) minutes at all public meetings, without having to register or give prior notice of the intention to speak to any Township officials; and

(7) To direct the Board to limit salary increases for the Town Administrator and department heads in the next fiscal year to the cost of living.

At the Board's next regularly-scheduled, bi-monthly meeting, on April 25, 1995, Trustee Elliot moved that the Board implement each of the Electors' directives, as listed above. By a vote of three to two, the Board voted to table Trustee Elliot's motions. In addition, the Town Clerk admitted that he was not tape-recording the meeting and indicated that he would not comply with the Electors' directive to tape record future Board meetings. The Board also refused to recognize members of the public who attempted to speak at the meeting without having given prior notice.

On May 1, 1995, certain Electors (plaintiffs) filed a complaint against the Town Clerk, the Town Supervisor, the Town Administrator and two Town Trustees, individually and in their official capacities, (collectively referred to as defendants) for a "Writ of Mandamus and Other Relief." The plaintiffs said that they were bringing the action individually and on behalf of a majority of Electors of the Township of Maine.

In count I of the complaint, plaintiffs sought to compel the named town officers to act in accord with the mandates issued by the majority of the Electors at the April 11, 1995, annual town meeting. In count II, plaintiffs alleged that $47,000 had been paid to an architectural consultant for the Town Hall addition and that the payment, having been made in direct violation of the Electors' directive, constituted a breach of fiduciary duty by the Town officers. The plaintiffs requested compensatory and punitive damages.

In a separate pleading, plaintiffs sought a preliminary injunction against the Town officers, seeking to enjoin them from taking any further steps toward the construction of the Town Hall addition. Plaintiffs also sought affirmative relief -- a directive to the Town Clerk to tape record all future Board meetings.

On May 25, 1995, defendants responded by filing a motion seeking dismissal of count I of the complaint and summary judgment on count II of the complaint.

On June 1, 1995, plaintiffs filed a motion for summary judgment as to count I; a motion to strike defendant's Exhibit A (a purported copy of the "official minutes" of the annual meeting); and a ...


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