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Tuesday, October 2, 2012

Trustee's Abstention Did Not Count as Vote in Favor of Agreement to Settle His Lawsuit Against the Board

Bertrand was a trustee on a three-member school board.  People v. Bertrand, 2012 IL App (1st) 111419 (September 28, 2012).  Bertrand had filed a civil rights lawsuit against the school board when the previous board members refused to seat him as a trustee on the board.  He prevailed on his claim to be seated as a trustee, and the parties negotiated a draft settlement of the remaining claims that would involve payment to the defendant of $220,000.  On June 10, 2010, only two members of the board were present at the meeting at which the proposed settlement was scheduled for approval.  The other member of the school board voted in favor of the settlement and Bertrand abstained. 

Several members of the public expressed dissatisfaction with the process and alleged that the vote was void because the defendant's abstention should not have counted as an affirmative vote.  So, another meeting was held to put the settlement agreement to a second vote, this time before all three trustees on the school board.  One member voted to approve the agreement, another voted against the agreement, and Bertrand again abstained.  Bertrand declared that the motion passed, and plaintiffs filed this lawsuit shortly after the vote, seeking a declaration from the court that the settlement agreement was void.  The Illinois Attorney General intervened as a plaintiff.  The trial court ruled in favor of the plaintiffs, finding that the settlement agreement was void because it was not properly approved by the school board.  The school board appealed.

The appellate court first looked at the conflicts of interest statutes in the Prohibited Political Activities Act.  According to plaintiffs, Bertrand had a clear conflict preventing him from voting on a settlement agreement in which he had a financial interest. (50 ILCS 105/3(a)). That section is designed to deter public officials from placing themselves in positions where their private pecuniary interests conflict or may conflict with their official public duties.  In this case, the appellate court agreed with the plaintiffs that the settlement agreement was a prohibited contract under this section. The court also rejected Bertrand's argument that his vote to abstain counted as a "yea" vote under the Prosser rule because such an interpretation would "create an end-run around the statute, allowing public officials to cast affirmative votes for contracts in which they had an interest by voting to abstain."  Thus, Bertrand's abstention was interpreted as having the same effect as a "nay" vote, meaning that the settlement agreement was not properly approved.

Post Authored by Julie Tappendorf, Ancel Glink


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