Mayor Rey and Council Members,
I am concerned about the legal advice that Dean Frieders is giving to the City of DeKalb that is inconsistent with state law. Last week, I sent you two emails about the legal advice that Dean Frieders gave the city regarding the Freedom of Information Act. Today, I want to discuss the change to DeKalb’s code that allows the mayor to vote on all questions coming before the city council. Dean Frieders rewrote this section of the city code and it is not consistent with the state statute.
Earlier this week, I watched the video of the August 13, 2012, meeting. Mr. Frieders explained that he had done research on 65 ILCS 5/5-3-5 and that the City should update the code regarding the Mayor’s ability to vote. The discussion was less than seven minutes. Mr. Frieders stated that in the past the mayor voted infrequently, but this change would allow the mayor to vote more frequently.
I have been researching the laws regarding mayoral votes. The statute reads clearly. Also, I have read section 3.40 “The Mayor’s or President’s Right To Vote” (attached to this email) from the IICLE Publication “Municipal Law (Illinois): Organization, Operation, and Governance 2012 Edition.” This section states “In municipalities operating under the manager form of government in which aldermen are elected by wards …, the mayor or president may vote only in those three instances set forth above.” This section clearly states that the mayor may not vote on all questions coming before the council, but Mr. Frieders put into the city ordinance that the mayor could vote on all questions.
IICLE is the Illinois Institute of Continuing Legal Education. Their publications help lawyers get up to speed on a given topic. I am concerned about what legal impact this advice has had on City of DeKalb’s business. Since the mayor has voted numerous times when he is not allowed by state law, does this invalidate those votes?
Attachment: (65 ILCS 5/5-3-5)(from Ch. 24, par. 5-3-5) Sec. 5-3-5. The mayor or president of any city or village which elects aldermen by wards or trustees by districts shall not vote on any ordinance, resolution or motion except: (1) where the vote of the aldermen or trustees has resulted in a tie; (or) (2) where one-half of the aldermen or trustees then holding office have voted in favor of an ordinance, resolution or motion even though there is no tie vote; or (3) where a vote greater than a majority of the corporate authorities is required by this Code to adopt an ordinance, resolution or motion. In each instance specified, the mayor or president shall vote. The following mayors and presidents may vote on all questions coming before the council or board: (1) mayors and presidents of cities and villages operating under this article and Article 4, and (2) mayors and presidents of cities and villages which do not elect aldermen by wards and trustees by districts. Nothing in this section shall deprive an acting mayor or president or mayor or president pro tem from voting in his capacity as alderman or trustee, but he shall not be entitled to another vote in his capacity as acting mayor or president or mayor or president pro tem. (Source: Laws 1967, p. 3425.)