Referendum Could Not Change "Manner of Selection" of Municipal Board of Ethics
In Schittino v. Village of Niles, an Illinois Appellate Court invalidated a referendum that had attempted to change the manner of selection of a municipal board of ethics from an appointed board to an elected one.
A home-rule municipality adopted an ordinance to establish an appointed board of ethics. In 2019, voters initiated a referendum to replace the appointed ethics board with an elected one. The referendum was delayed in litigation as the village clerk refused to certify the referendum, believing it was unauthorized by the Illinois Constitution. In 2021, an Illinois Appellate Court held that the clerk’s role under state law was limited to determining whether the petition was in “apparent conformity” with filing requirements—e.g., having the minimum number of signatures—and not matters of substantive constitutionality. As a result, the referendum was allowed to proceed and was subsequently approved by voters at the April 2021 election.
The village then placed a referendum on the June 2022 ballot to repeal the 2021 referendum and restore the ethics board to appointed positions. However, because voters failed to approve the 2022 referendum, the 2021 referendum remained in effect and the village scheduled elections for the ethics board at the next municipal election in 2023.
In 2023, a lawsuit was filed to challenge the 2021 referendum and asked the court to declare that the 2021 referendum was not authorized by the Illinois Constitution and to issue an injunction prohibiting the village from certifying any 2023 election results for the elected ethics board members. The circuit court ruled in favor of the plaintiff and declared the 2021 referendum invalid and prevented its enforcement.
Intervenors in the lawsuit (including a candidate for the ethics board at the 2023 election) appealed the circuit court’s decision. The Appellate Court agreed with the circuit court and denied the appeal, as follows.
First, the Appellate Court held that the ethics board members did not qualify as “officers” as required under Section 6(f) of Article VII of the Illinois Constitution. Section 6(f) provides as follows:
(f) A home rule unit shall have the power subject to approval by referendum to adopt, alter or repeal a form of government provided by law, except that the form of government of Cook County shall be subject to the provisions of Section 3 of this Article. A home rule municipality shall have the power to provide for its officers, their manner of selection and terms of office only as approved by referendum or as otherwise authorized by law. A home rule county shall have the power to provide for its officers, their manner of selection and terms of office in the manner set forth in Section 4 of this Article.
The Appellate Court pointed to an Illinois Supreme Court case that held that “officers” referenced by section 6(f) are only those included in the form of government provided for in the Illinois Municipal Code. Here, the Appellate Court found no language in the Illinois Municipal Code providing for an ethics board as part of the form of municipal government. As a result, the ethics board members were not "officers" under Section 6(f) of the Illinois Constitution, and the "manner of selection" of their members could not be changed by the 2021 referendum.
Second, the Appellate Court rejected the intervenors argument that the suit was barred by the laches doctrine because the plaintiff waited two months before the 2023 election to file suit against the 2021 referendum, resulting in prejudice to the ethics board member candidate intervenor. The Appellate Court held that the intervenors failed to demonstrate any evidence to show prejudice and that the plaintiff did not unreasonably wait to file suit as the 2022 referendum could have repealed the 2021 referendum.
Post Authored by Katie Nagy & Julie Tappendorf, Ancel Glink
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