City of DeKalb and Its Incompatible Offices

DeKalb isn’t particularly good at observing boundaries. One example is that DeKalb’s contracted attorney is allowed to sit with the city council during planning sessions as an assistant in setting strategic priorities. In other words, a contractor gets to step out of his assigned role to provide unfettered input into public policy that the public itself never gets to enjoy.

But while the attorney’s extra privileges are plenty objectionable from an ethics standpoint, the most egregious errors in failing to maintain separation of roles have arguably come about in DeKalb’s dealings with the city clerk’s office beginning in 2012, when clerk Steve Kapitan was forced to resign. Here’s what city staff said about it at the time (my emphases):

[City manager Mark] Biernacki explained that because of Kapitan’s unique situation as both an elected official and city employee, certain confidentiality rights are in place.

The city, as the former employer of Mr. Kapitan, has certain obligations to keep his personal records confidential,” said city attorney Dean Frieders…

City of DeKalb again combined the roles of city employee and city clerk when Diane Wright was appointed in Kapitan’s place later that year, yet also kept her administrative job with the city (again, my emphasis):

With recent changes in City Hall staffing, a proposal has been developed to provide more efficient use of City personnel to perform administrative functions for the City, by utilizing the currently serving Acting City Clerk in a dual role as City Clerk and Executive Secretary.

These moves are problematic specifically because citizens of DeKalb have voted twice in the past 10 years to retain their municipal clerk as an elected position. While certainly “unique” and possibly even “efficient,” these elected official-city employee hybrids are not allowed under Illinois law. Elected officers are intended to serve only one master, and that’s the electorate.

There’s an essential mechanism to uphold proper separation of roles, a principle in common law that prohibits incompatible offices, or in other words any two offices that, when combined, hold the potential for conflicts. This principle is consistently upheld in case law, whether you’re talking about one person holding two elected offices or someone holding elected office and employee status at the same time in the same municipality. In Rogers v. Village of Tinley Park, for example, an appellate court ruled that a police officer employed by Tinley Park was not allowed to serve as trustee of the same municipality (emphases added; citations removed):

Regardless of the existence of specific statutory prohibitions, the common law doctrine of incompatibility has developed as a matter of public policy in order to insure that there be the appearance as well as the actuality of impartiality and undivided loyalty. Incompatibility exists `where in the established governmental scheme one office is subordinate to another, or subject to its supervision and control, or the duties clash, inviting the incumbent to prefer one obligation to another.’ If the duties of the two offices are such that when `placed in one person they might disserve the public interests, or if the respective offices might or will conflict even on rare occasions, it is sufficient to declare them legally incompatible.’

Claiming that Steve Kapitan was not only an elected clerk but also an employee of the city was wrong because it created the appearance that he was subordinate to someone other than the citizens who elected him. Appointing Diane Wright to the clerk’s position while retaining her in her city job created subordination to the city manager’s office not only in appearance but also in fact.

This kind of thing is not ancient history, either. It’s still going on. No matter what the organizational charts say — or whatever lip service city hall wants to pay — the city clerks who have served after Steve Kapitan, including the duly elected Liz Peerboom and our current office holder, have been in fact improperly constrained by the city manager’s office.

I’ll explain how in a later post.

Related:
CityEthics.org: Incompatible Offices in Perspective