City of Centralia City Council met April 22.
Here is the minutes provided by the council:
The City Council for Centralia, Illinois met on Monday April 22, 2019 in the Council Chambers at Centralia City Hall. Mayor Ashby called the meeting to order at 6:00 p.m.
ROLL CALL
Present: Mayor Ashby, Councilman Jones, Councilman Smith, Councilman Sauer and Councilman Marshall
Absent: None
Staff Members Present: Dan Ramey, City Manager; Doug Gruenke, City Attorney; Michelle Liggett, Finance Director; Bobby Patton, Code Enforcement Officer; Chief Brian Atchison, Police Department; Kala Lambert, Executive Assistant to the City Manager; Jeff Schwartz, Public Works Director; Rose Aldag- McVey, Economic Development Director; Pat Stedelin, Public Property Foreman; Tara Ramey, Deputy City Clerk; Bill Agee, City Treasurer; and Kim Enke, City Clerk
PLEDGE OF ALLEGIANCE
Mayor Ashby led the Pledge of Allegiance
AMENDMENTS AND/OR ADDITIONS TO AGENDA
None
PUBLIC PARTICIPATION
Mayor Ashby and the City Council presented the Centralia Elk’s Lodge #493 with a proclamation honoring them for 150 years of service to the community. He noted the involvement of the Elk’s in the community, their financial contributions, and the many donations of goods and services that that they have provided. Mayor Ashby noted that a banner had been hung by the Elk’s at their lodge recognizing their contributions as well. Blake Freels and many other Elk’s members were in attendance to accept the proclamation.
Mayor Ashby and the City Council presented a proclamation for Sexual Assault Awareness Month. Mayor Ashby noted that the City has been presenting this proclamation in recognition of Sexual Assault Awareness Month for many years. Brittney White, representing Sexual Assault And Family Emergencies (S.A.F.E), accepted the Proclamation stating that they offer free counseling to children and adults and have a 24 hour hotline. She noted that they are always looking for volunteers and encouraged anyone interested to contact their office. Melissa Kelly, a legal, medical, and crisis advocate was also in attendance to accept the Proclamation.
Mayor Ashby and the City Council recognized the retirement of Doug Burge who had over 34 years of dedicated service with the City of Centralia. A plaque was presented to him recognizing his service and retirement.
Mayor Ashby requested that Chief John Lynch recognize those that were hired, promoted and retired from the Fire Department and sworn in prior to the City Council Meeting. He stated that Drake Tate was hired as a new Firefighter, Mike Gelsinger was promoted to Captain, and Scott Wiesen was promoted to Lieutenant due to the retirement of Captain Mike Calabrese.
Mayor Ashby questioned if Mayor-Elect Kuder was in attendance. Mayor Ashby then stated that the City was notified that Mayor-Elect Kuder’s daughter was in labor. Mayor Ashby stated that the meeting will be recessed prior to the Other Business portion of the meeting that concerns qualifications of Mayor- Elect Bryan Kuder. He then stated that the meeting will reconvene again on Tuesday at 6:00 p.m. Mayor Ashby stated that anyone that wants to address the Council will be able to as well. He reviewed the form for public participation and the rules to address the Mayor and City Council.
John Prior addressed the Mayor and City Council in regards to the letter of resignation that was submitted by the City Manager. He asked that Dan Ramey consider withdrawing the letter. Mr. Prior stated that he wants the Council and others to recognize what he has done for the City and still could if he would continue on with the job. He discussed a positive experience that he had with the City Manager noting that there were several other people that have also had had great experiences with him as well.
John White addressed the Mayor and City Council by reading a statement concerning the residency of Mayor Elect- Kuder. He stated that Mayor-Elect Kuder received just under 50% of the votes of the mayoral candidates during the election. Mr. White stated that he wanted to know what the question was about Bryan Kuder’s residency due him having an apartment that he has leased since March, prior to the election on April 2nd. He added that the home at 5 Circle Drive was still his home until till April 5th after the election when it was sold. He stated that with this timing, he had two residences. He stated that he knows part of the argument is due to Mr. Kuder owning property outside of the city limits, but Mr. White doesn’t believe that there is a home on that property at this time. He doesn’t see any legalities that would keep him from being sworn in. He stated that any decisions should be made by the State Election Board and not the City Council. He stated that he wants to know if a swearing in ceremony will be held prior to May 13th. He stated that he would like answers about what legalities pertain to this situation when the voters have elected Mayor- Elect Bryan Kuder.
Steve Coleman addressed the City Council in order to wish Mayor Ashby and Councilman Smith well on their next endeavors and wished the City Manager well when he resigns in August. Mr. Coleman stated that he was aware that Mayor Elect won the election but hopes the residency issue is straightened out by determining if the Mayor Elect is qualified or if the decision needs to be made to seat the person with next highest votes. Steve Coleman also asked for more police protection in all areas of the City.
David Parker, addressed the Mayor and City Council. He stated that on April 2nd he was elected as Library Trustee. He stated that people are seeing the actions against seating Mayor Elect Kuder as a way for the Mayor Pro Tem to enter office despite evidence that Mr. Kuder resides in the city limits and has been elected as Mayor. He stated that the timing of resignation of the City Manager is suspicious. He stated that he supported Mr. Burris but they disagreed on whether Mr. Kuder should be on the ballot since Mr. Burris didn’t think that Mr. Kuder should have been on the ballot. He stated that Mr. Jones should recuse himself from any vote involving the election and Mr. Kuder. He also asked how Mr. Jones could perform as Mayor under the mistrust and suspicion that has begun.
Mr. Parker addressed the City Attorney, asking him to point out how the public body could legally take a vote. He stated that he does have a reputation that precedes him. He addressed Councilman Marshall stating that he is a talented accountant and also has a reputation that preceded him. He stated that Councilman Marshall is a great example to the young people in the community. He addressed Councilman Sauer stating that they have similar philosophies concerning government. He stated that they have had a few conversations and he looks forward to more in the future. He addressed Mayor Ashby applauding him for staying out of the election matter and for stating that that it is a matter for the Illinois Board of Elections to determine. He addressed Councilman Smith stating that voters may have been confused at the polling place due to being defeated by another candidate with the last name Smith. He stated that it takes citizens to be involved in the process. He added that the 2021 election is coming and he is a potential candidate for the office of Councilman. He stated that he is not without fault and has had personal struggles and fights but has overcome them. He stated that he seeks truth and transparency in this process and believes along with other residents that the Council should not discuss or consider voting on the election matter. He stated that he agrees with several residents that Bryan Kuder is the duly elected Mayor and should be sworn in.
Margaret Spoor addressed the City Council in regards to the purchase of a trolley car on the agenda. She asked where the funds were coming from, why it was being purchased, and where the expenses of the operation of the car was coming from. She stated that the City has other needs than a trolley car such as the theatre that could be utilized.
Vernell Burris addressed the City Council recalling the street cars that the City had years ago. Mr. Burris also recalled that prior to Dan Ramey being the City Manager the City was having trouble paying the bills and facing bankruptcy. He stated that City Manager Ramey has done an outstanding job, he understands government, and has a lot of experience. He stated that he has the interest of Centralia at heart. He stated that he has obtained more grants and has done more improvements. He asked that the City Council reject item # 9-3 and keep City Manager Ramey on board.
CONSENT AGENDA
A Motion was made by Councilman Smith and seconded by Councilman Marshall to Approve Items 1-4 of the Consent Agenda.
1. Approval Of The Minutes Of The April 8, 2019 City Council Meeting
2. Approval Of Payrolls And Vouchers In The Amount Of $737,236.24
3. Request to Use Fairview Park by the American Legion Post #446 for the Annual 4th of July Celebration From July 1st thru July 4th
4. Approval of Request to Allow Use of Lake Centralia by the 618 Bassmasters for a Tournament on May 4th
Ayes: Councilman Jones, Councilman Smith, Councilman Sauer, Councilman Marshall, and Mayor Ashby
Nays: None
A majority of the Council voting aye, the motion carried.
Mayor Ashby acknowledged the American Legion for providing the Annual 4th of July Celebration and fireworks for the community each year.
REPORTS AND COMMUNICATIONS
None
BIDS
A Motion was made by Councilman Marshall and seconded by Councilman Smith for the Approval of Bid
Received For Painting Services From Dave Mulvin Painting Contractor in the amount of $20,995.00.
Ayes: Councilman Jones, Councilman Smith, Councilman Sauer, Councilman Marshall, and Mayor Ashby
Nays: None
A majority of the Council voting aye, the motion carried.
ORDINANCES
A motion was made by Councilman Smith and seconded by Councilman Sauer to Approve An Ordinance Designating An Amendment To The Centralia Zoning And Subdivision Code Article III-10-2-3-108.3, Special Uses For The B-2 Central Business District, To Include Mini Storage Facility.
Ayes: Councilman Jones, Councilman Smith, Councilman Sauer, Councilman Marshall, and Mayor Ashby
Nays: None
A majority of the Council voting aye, the motion carried.
Mayor Ashby stated that the zoning had been reviewed by the appropriate committees and approved by the Planning & Zoning Board as well.
RESOLUTIONS
A motion was made by Councilman Sauer and seconded by Councilman Smith to Approve A Resolution Approving The Purchase Of A Trolley Car. Mayor Ashby asked the City Manager to discuss the purchase of the Trolley Car that had been reviewed by other committees. City Manager Ramey explained that several years ago the Tourism Board discussed the purchase of a trolley car but it was dropped until recently. He explained that each year the City receives funds for hotel/motel taxes that are restricted tourism funds. He stated that they have reviewed several cars, but the one that the City is interested in is a 2008 model. He stated that this trolley could be utilized for events such as the Halloween Parade, the Christmas Stroll, the Locust St. Fair, Balloon Fest, Celebrate Centralia, Veterans 4th of July parade, Elmwood Speaks, Fantasy of Lights, for tours from the Amtrak station, and Museum events. He added that it could be an economic development tool with the purpose to attract more visitors. He reiterated that the tourism funds are restricted to purchases for tourism. He stated that working arrangements may be made with South Central Transit. He stated that the vehicle will be checked for any maintenance issues and if there are any issues the City will not go thru with the purchase.
Ayes: Councilman Jones, Councilman Smith, Councilman Sauer, Councilman Marshall, and Mayor Ashby
Nays: None
A majority of the Council voting aye, the motion carried.
A motion was made by Councilman Smith and seconded by Councilman Jones to Approve A Resolution Approving An Agency Agreement For Participation With The Illinois Department of Transportation (IDOT) For Grant Funding to Construct Access Taxiway to Runway 9 at the Centralia Municipal Airport. Mayor Ashby explained that this resolution is part of the process to receive the grant funds for the improvements at the airport.
Ayes: Councilman Jones, Councilman Smith, Councilman Sauer, Councilman Marshall, and Mayor Ashby
Nays: None
A majority of the Council voting aye, the motion carried.
Councilman Sauer asked the City Manager if there was any possibility that he may change his mind and not resign. City Manager Ramey stated no, he would not. He then recalled his history with the City. Councilman Marshall stated that the City Manager has done a wonderful job. He explained that he ran the city without raising property taxes and making so much progress. He stated that he is concerned with the future of Centralia over the next 5-7 years and hopes they can find someone that does as good of a job as Dan Ramey. Councilman Jones stated that this is one of the hardest votes to make due to the service Dan Ramey has given and his success at turning around the City over the last 8 years. He thanked City Manager Ramey for his service. Mayor Ashby stated that a search committee will be started. He recalled taking office at the first meeting in May in 2011. He stated that they had received over 100 applications for the position of City Manager and most either didn’t qualify or couldn’t be paid the salaries they were requesting. The City had a financial condition and due to that an independent finance committee was formed. He stated that the City had a -$21,000 balance and was in debt with a $38M budget. He reviewed the difficulty of serving as a City Official as well as being a business owner. He recalled how the City was able to take turn the -$21,000 to 1.5 M, receive countless grants, make improvements, and increase the visibility of the community. He stated that he is a member of the IML Board of Directors and a member of SIMA. He stated that when you attempt to hire City Managers you may either get someone on their way up and building their resume or on their way down and not working as hard anymore. He stated that advertisements should start immediately and the search committee will be formed. He stated that a copy of his resignation letter will be provided to the press with the City Manager’s last day being on August 16th. A motion was made by Councilman Sauer and seconded by Councilman Jones to Approve A Resolution Accepting The Resignation Of The City Manager.
Ayes: Councilman Jones, Councilman Sauer, Councilman Marshall, and Mayor Ashby
Nays: None
Abstain: Smith
A majority of the Council voting aye, the motion carried.
Mayor Ashby stated that the meeting will be recessed in order to give Mr. Kuder an opportunity to be present at the meeting. He stated that Mr. Kuder was given notice this past Tuesday and a letter was sent as well notifying him of the meeting. A motion was made by Councilman Jones and seconded by Councilman Smith to recess the meeting and reconvene on April 23rd at 6 p.m. in the City Council Chambers.
Ayes: Councilman Jones, Councilman Smith, Councilman Sauer, Councilman Marshall and Mayor Ashby
Nays: None
A majority of the Council voting aye, the motion carried, and the meeting was recessed at 6:56 p.m.
MINUTES OF THE RECONVENED MEETING OF THE CENTRALIA CITY COUNCIL
The City Council for Centralia, Illinois reconvened the April 22, 2019 recessed meeting on Monday April 23, 2019 in the Council Chambers at Centralia City Hall. Mayor Ashby called the meeting back to order at 6:00 p.m.
ROLL CALL
Present: Mayor Ashby, Councilman Jones, Councilman Smith, Councilman Sauer and Councilman Marshall
Absent: None
Staff Members Present: Dan Ramey, City Manager; Doug Gruenke, City Attorney; Michelle Liggett, Finance Director; Bobby Patton, Code Enforcement Officer; Chief Brian Atchison, Police Department; Kala Lambert, Executive Assistant to the City Manager; Jeff Schwartz, Public Works Director; Rose Aldag- McVey, Economic Development Director; Bill Agee, City Treasurer; and Kim Enke, City Clerk
PUBLIC PARTICIPATION
William Harrell addressed the Mayor and City Council in regards to the Mayor making the comment previously that the Council had no authority in the election decision and it was up to the State Board of Elections. He also stated that he heard a statement made that no one in the City is good enough to be the City Manager. He also stated that votes were cast, Bryan Kuder is a citizen, and he questioned the motivation behind the matters. He stated that these items concern him. He recalled personal complaints received against him with his previous employer.
OTHER BUSINESS
Mayor Ashby provided an overview of the order of the meeting. Mayor Ashby noted that a statement of facts will be presented by the City. Mr. Kuder will be given the opportunity to respond and give his opinion with the City Council having the final say. He asked who would be speaking on behalf of Mr. Kuder. His attorneys, including Nicole Villani and Lane Harvey, stated that they would be speaking.
City Manager Ramey stated that Mayor–Elect Kuder had the highest votes and that is not in question. He stated that the issue is that the winner of the election must also abide by the law and meet the State of Illinois residency laws. He stated that the statute states, that from the night of the election and a year prior, the person has to continue to be a resident the entire time. Each of the Council member take an oath of office to abide by the state laws and local ordinances. He stated that as City manager he has an obligation to check into anything that is brought to him to investigate and determine if it is a legal issue that could affect the City and he must act accordingly. The residency of Mayor-Elect Kuder was brought to him. City Manager Ramey stated that he and Mayor Ashby are not election attorneys and in response to Mr. Herrell’s statement concerning it being up to the State Board of Elections, it is a timing issue of when the State Board Election handles it versus the City. He stated that the State Board of Elections does not handle a situation such as this. He added that once a candidate is placed on the ballot and certified, the State Board of Elections will not get involved. He stated that this is a residency issue that is in question and at this time to be determined by the City Council. As an example, if the City would determine it is appropriate to disqualify the Mayor-Elect then the statute allows it to be taken to the Circuit Court to be reviewed by a judge. Other concerns of the City Manager includes the question of whether grants would be lost or contracts would be void if the Mayor-Elect would be disqualified after taking office. He stated that this is not a personal vote but a legal vote that must be made by the City Council. The Council will be making a decision based on the facts presented. City Manager Ramey began a Power Point to review the complaints and inquiries regarding the qualifications of Mayor-Elect Kuder along with a review of facts and public documents that the City has received or obtained. The section of the state statute, 65 ILCS 5/3.1-10-5, that pertains to residency requirements was reviewed. The documented inquires made to the City were reviewed that included letters, public comments and multiple inquiries from citizens and the media. The next slides of the Power Point included the purchase and sales history of Mr. Kuder’s residence at 5 Circle Drive as well as the residence in Washington County. The minutes from the Washington County Board was presented that indicates the request to change the zone district of the property in Washington County to become residential use. The PTAX form, recorded with the Washington County Clerk that was signed by Mayor-Elect Kuder, certifying 19506 County Hwy. 18 as his principal residence was provided. Also, the mortgage for 19506 County Hwy. 18 was provided that included a paragraph that Mayor Elect Kuder would agree to occupy the property as his principal residence within 60 days of the mortgage and for one year. The March 11, 2019 City Council minutes were provided that included Bryan Kuder addressing the City Council concerning his residency. A photograph of the apartment building that includes 1 bedroom apartments that Mayor-Elect Kuder is renting was provided. Next City Manager Ramey provided a portion of the post-election interview as reported on WJBD radio on April 3, 2019 where Mr. Kuder stated that he has an apartment in Centralia that is still being remodeled and will also stay at the house in the country on weekends. City Manager Ramey concluded the Power Point stating that the information was provided to the City Attorney in order to provide a legal opinion.
Attorney Gruenke stated that he was asked by the City Manager to provide a legal opinion in an open meeting in order to clear up many misconceptions and misstatements that were made in order to explain what the law actually is. He stated that a detailed legal memo was submitted as well. Attorney Gruenke stated that he has represented municipalities for 20 years. He stated that currently he represents approximately 12 municipalities and is the President of the Illinois Local Government Association that includes members that also practices municipal law. He stated that he did a great amount of research and also consulted with other municipal attorneys. He stated that his opinion is lengthy and has the possibility of an outcome that would take the seat away from the person with the most votes if the Council would find that Mayor-Elect Kuder is not qualified. He stated that at the last meeting a resident addressed the City Council in regards to the residency of Mayor- Elect Kuder. Following that meeting there were several other inquiries from the public that prompted the City Manager to request the review by the City Attorney. He stated that he reviewed the facts and agreed to apply the laws without bias. He stated that the City Manager requested that he answer 5 questions in order to give a legal opinion. The 5 questions were: (1) What residency requirements must a candidate for Mayor meet in order to be eligible to hold the office of Mayor? (2) Do the residency requirements apply to a municipal office after an election? (3) Did Bryan Kuder meet the applicable residency requirements? (4) If Bryan Kuder did not meet the applicable residency requirements, and is therefore unqualified to hold the office of Mayor, what options exist for the office of Mayor? (5) If Bryan Kuder is seated and is later found to be disqualified, what impact will that have on votes or contracts? Attorney Gruenke stated that his opinion was based on the facts given by the City Manager.
The first question was addressed by reviewing the state statute in the Illinois Municipal Code which is a two-fold requirement. One being that the person must be a qualified elector of the municipality and the second being that the person must reside in the municipality at least one year next preceding the election. He stated that the two requirements are slightly different. The requirement to be a qualified elector is not applicable for one year prior to the election, but they must be a qualified elector at the time they take office and for the entire term of office. An elector as defined in 65 ILCS 5/1-1-2(3) is a person that is qualified to vote at municipal elections and the Illinois Appellate Court also has stated that an elector is analogous to a registered voter. He added that the election code describes how a person becomes an elector or registered voter in 10 ILCS 5/3-1. The statute provides the relevant ways to become a registered voter or elector by requiring that the individual must reside in Illinois and in the election district during the 30 day period immediately preceding an election. Another way to become a elector is if the person resides in and is registered to vote from an election district during the 30 day period preceding the election but has moved to another election district in Illinois within the 30 day period, completes a specific affidavit as set forth in Section 17-10 of the Election Code. He stated that he did not give an opinion on whether Bryan Kuder was an elector at the time, due to not having the proof that the specific affidavit required in Section 17-10 was provided and on file with the County Clerk. He also noted that Section 3-2(a) states that a permanent abode is also necessary. He stated that the next part of that statute is that a person must reside for one year next preceding the election. He stated that this means that the person running for office must be a resident of the municipality for the full year period immediately preceding the date of the election. He stated that in this instance they must be a resident of Centralia for the period beginning on April 2, 2018 and ending April 2, 2019. He stated that there are additional requirements that may persist after the election but pertaining to this question, it comes down to the period prior to the election. He stated that based on Illinois Appellate Court statements in the 1st and 5th districts, residency within the municipality is determined by the person’s physical presence at a fixed location for one year within the corporate boundaries, together with a permanent intention to remain in the community. He noted that one of the cases was from 1976 and one was from 1948, which are longstanding principles. He stated that in addition, the Illinois Supreme Court did discuss those cases and specifically defined how residency is established in 2011 in the case of Maksym v. Board of Election Commissioners of the City of Chicago. He added that this case was also known as the Rahm Emanuel case. In this case the Supreme Court found the following: (1) To establish residency, two elements are required including physical presence and an intent to remain in that place as a permanent home. (2) Once residency is established, the test is no longer physical presence but rather abandonment. A residence is not lost by temporary removal with the intention to return, or even with a conditional intention of acquiring a new residence, but when one abandons his home and takes up his residence in another county or election district. (3) Both the establishment and the abandonment of a residence is principally a question of intent. The intention is gathered primarily from the acts of the person, but may also include statements of the person. He stated that prior to this case there was more weight given to the statements of the person’s intent by the person, but after the case the weight was given by the actions of the person (4) Once a residence is established, the burden of proof is on the contesting party to show that it has been abandoned. Said together with the first question, a candidate for municipal office must be a registered voter of the municipality for the duration of the term of office and must be a resident for the full year immediately preceding the election. For purposes of establishing residency, the candidate must be physically present at the place and intend to remain in that place as a permanent home. Once established, residence can be terminated via abandonment.
The second question was addressed by Attorney Gruenke. He stated that the requirement that the municipal official be an elector of the municipality does continue throughout the term of office. He added that there is also another section of the Illinois Municipal Code (65 ILCS 5/3.1-10-50(c)(1)) that creates a vacancy when the official no longer resides in the municipality. The section states that a vacancy occurs in an office by more than a temporary removal of the residence from the municipality. Therefore, the residency requirement does continue after the election has taken place and after the elected official has been seated.
The third question was addressed by reviewing the time period beginning April 2, 2018 and ending April 2, 2019. He stated that there was no question that, prior to April 2, 2018, Bryan Kuder’s established residence was 5 Circle Drive in Centralia. He stated that was the address at the time his petition was filed and legal. If someone would have tried to contest his petition or file an objection as it relates to residency that would have been a failing argument and he would have been allowed to be on the ballot. The reason that it is an established residency was due to him physically living there, and intended to live there, until such time that he vacated that particular property. With that being the established residency under the Supreme Court precedent, he stated that they must look at whether Bryan Kuder abandoned his residency at 5 Circle Drive, and as a result of that, he abandoned his residency within the City. Some of the facts presented were the purchase of tracts of property purchased in 2017 and 2018 outside of the City limits. They were approximately 13.45 acres in Washington County but there were no facts presented that Mr. Kuder has moved to these particular properties or built a house on these properties. Applying the tests set forth by the Illinois Supreme Court, this acquisition did not affect the residency of Mr. Kuder in the City. He stated that the next item that he reviewed was the purchase of the property located at 19506 County Highway 18, Centralia, Illinois. He stated that this property was purchased by Mr. and Mrs. Kuder on February 1, 2019 and is located outside the corporate limits of the City and it is near or adjacent to the other tracts of property previously mentioned. The purchase of the property alone would likely be insufficient to cause the abandonment of the residency of Bryan Kuder at 5 Circle Drive. If Bryan Kuder would have maintained his residence and ownership of 5 Circle Drive, it almost certainly could have been argued that, even though the home at 19506 was of greater size and value than the home at 5 Circle Dr., he could still be a resident of 5 Circle Drive, and therefore maintained his residence in the City. Attorney Gruenke stated that this did not occur, so he had to look at additional facts. Mr. Kuder did sell 5 Circle Drive, he moved out of the home at the beginning of March, and took up residence at 19506 County Highway 18, the subject property at that time. When he purchased the subject property on February 1, 2019, a PTAX 203 declaration form was completed indicating the property was his principal residence. The PTAX outlines the amount of tax that needs to be paid on the transfer of the property and it shows, for assessments purposes, if there have been any improvements or if there are going to be improvements. It also determines if there are exemptions including the homestead exemptions that owners would be entitled to if it is their primary residence. Attorney Gruenke stated that at the same time the PTAX was filed there was also an owner occupied mortgage that was executed that he represented to his lender that the Subject Property would be his principal residence within 60 days and that he would maintain that as his principal residence for one year following the date at which he took up residency on that property. Attorney Gruenke also stated that as of Election Day, Mr. Kuder stated he was still residing at the Subject Property and had not maintained a physical presence at the apartment. When he abandoned his residence at 5 Circle Drive and maintained his physical presence elsewhere, combined with the stated intent of the completion of the PTAX form and mortgage stating that the subject property would be his principal residence, that lends itself to the conclusion that there was an abandonment of the residency at 5 Circle Drive and he had taken up a new residency at the Subject Property.
The fourth question was addressed by three options that exist if Mr. Kuder was found to be unqualified, in no particular order. Attorney Gruenke stated that one option includes action that can be taken by the City Council. The City Council is authorized by the Illinois Municipal Code (65 ILCS 5/3.1-10-50(c)(1) which provides that a vacancy occurs in an office by failure to qualify. It continues on to say that the corporate authorities have the authority to determine whether a vacancy under this subsection has occurred and could, by majority vote, determine whether an elected official or current councilman is qualified or unqualified. If that action is taken, due to the fact that the City is a City Manager Form of Government, the Council would have 60 days to appoint a person to the office of Mayor. That appointed person only has to meet the requirements set forth in the Municipal Code. It does not have to be a member of the City Council and does not fall to the next highest vote getter. That person would hold office until the next election by filling an unexpired term. The second option Attonrey Gruenke explained, is for a resident of the City or an elected official to file a quo warranto action. This is asking the court to hold that the corporate authorities have done something beyond their authority. He provided the example that if the City Council did find Mr. Kuder qualified, and seats him at the May meeting, any resident of the City could bring quo warranto action seeking the removal of Mr. Kuder. The statute requires that the Illinois Attorney General and the States Attorney must first be given the opportunity to get involved and from his experience the Attorney General never gets involved and the States Attorney sometimes does get involved. If the Attorney General or States Attorney fail to act, at that point a resident then could bring quo warranto action. He also added that if it was a resident that brought the action that does not have an interest in the relationship with the Mayor, separate from any other resident, the court would be inclined to not let that proceed. If it was brought by an elected official, the Illinois Courts have been near unanimous that an elected official has the right to bring quo warranto action after it is offered to the States Attorney and the Attorney General. He stated that the third option is if the City does not act or acts and finds that Mr. Kuder is qualified and a quo warranto action is not brought, then Mr. Kuder would be sworn in. He would continue in that positon unless someone brought a quo warranto action against him challenging the residency after the election, or the City Council, after he was sworn in, could also have the authority to challenge his residency.
Attorney Gruenke stated that there is no clear answer to the fifth question. He added that in the vast majority of these cases, the elected official is removed prior to taking office or voluntarily resigns. He stated there was some language that he found by the Illinois Appellate Court in 2017, Wofford v. Brown case. He stated that the case involved quo warranto brought by two alderman against a fellow alderman that had been convicted of a felony. Attorney Gruenke provided the adopted language. He stated that while he does not know what effect that may have if someone would bring action after Mr. Kuder was seated, but based on the Illinois Appellate Court, he stated that a party seeking to void any action taken with the consent or authorization of a disqualified mayor may successfully argue that the action of the mayor was illegal, unauthorized, or tainted.
In conclusion based on the facts presented to Attorney Gruenke and with him not having anything presented by Mr. Kuder, he stated that it appears that Mr. Kuder failed to qualify for the office of Mayor because he abandoned his residence in the beginning of March and did not re-establish it within the City. He stated that Mr. Kuder’s intent was listed on a document that made a representation to a banking institution and signed under the penalty of law and given to the government for tax purposes. He stated that the decision of whether Mr. Kuder has failed to qualify or the decision to declare the resulting vacancy, is solely up to the City Council. The City Council has the ability to rule on the qualifications and determine the vacancy.
City Manager Ramey stated that he had not informed the City Attorney but he had contacted Attorney Paul Evans from O’Fallon for a second opinion. The same information that was provided to Attorney Gruenke was provided to Attorney Evans. Attorney Evans responded that he concurred with Attorney Gruenke’s memo and conclusion.
He stated that this Council is who makes the determination or an individual councilman could also take it to Circuit Court. He stated that it is a legal issue. He stated that during the previous week, he checked with the Attorney to review the process and had a short conference with the Mayor. He added that he had requested that the City Clerk inform Mr. Kuder that this topic was going to be on the upcoming agenda although the agenda had not been completed. He stated that Mr. Kuder was informed and confirmed that he would be attending at that time. He stated that it is a legal issue and not a political issue. He stated that on Monday, the day of the Council Meeting, Mr. Kuder’s Attorney contacted Attorney Gruenke stating that she was not going to be able to be there and wanted it postponed. He added that at approximately at 3:30 p.m., Mr. Kuder had informed the City Clerk that his daughter was in labor. He then notified the Mayor and it was determined the need to recess the meeting to the next evening to allow Mr. Kuder to be there.
Mayor Ashby asked the City Manager to confirm that Attorney Evans concurred with Attorney Gruenke. City Manager Ramey read a memo from Attorney Evans that stated that he did concur.
Mayor Ashby welcomed Mr. Kuder’s legal counsel and stated that the Attorney Harvey can present all the facts they have and the City Council will only see, observe, and hear the facts.
Attorney Harvey addressed the Mayor and City Council stating that there were significant facts omitted from the City Attorney’s report and some facts, in terms of definitions, to be made aware of. He referred to the Maksym case in the Illinois Supreme court that stated that to establish residency two elements are required including physical presence and an intent to remain in that residence as a permanent home. He stated that there was no question that Mr. Kuder had established residency in the City prior to filing the papers to run for Mayor. He added that the Supreme Court also stated that once residency is established the test is no longer physical presence but rather abandonment. Once a person has established residence, the person can be physically absent from that residence without abandoning the residence. He stated that he wanted to point out important things that were not mentioned. He stated that it is known that Mr. Kuder decided to sell his home on Circle Drive and he did. On March 1st he entered into a lease, to lease an apartment, which was in the City limits. He stated that he had not ceased to be a resident and his intent was to continue to be a resident. He stated that in order to manifest that intent, he registered to vote at that address, changed his car insurance to that address, and his drivers license to that address. Attorney Harvey stated that he could have bought property on the moon and it wouldn’t have changed his residence. He stated that the issue is the legal definition of his residence and if he did anything to manifest an intent to abandon the residence. Councilman Sauer stated that the question is if he abandoned the Circle Drive property, it’s not a generalized abandonment of his intent to be a resident, the question is if he abandoned where he was residing. Attorney Harvey stated that there is no question that he moved, sold and left the Circle Drive property. Attorney Harvey stated that he doesn’t understand any requirement in the statute that says that he has to live at Circle Drive. Councilman Sauer questioned Attorney Harvey stating even if he abandons Circle Drive, as with a contract for sale, and moves out. Attorney Harvey stated that it was not abandonment due to him leasing an alternative residence in the City. He stated that he did the things as required to notify all of the legal authorities of his change of residence. Attorney Harvey stated that he is not aware of any statute that says that as a qualification for Mayor, he has to live at Circle Drive. He stated that under the terms of the Maksym case, he was a residence because he didn’t abandon his resident in Centralia. The question, as he perceives it, is if he was a continuous resident of Centralia. He stated that his temporary absence from Centralia is not an abandonment of that residence. He did have an unfortunate consequence, after he had leased the apartment on W. Broadway but before he could occupy it, there was a water accident that rendered the apartment uninhabitable. Since he had already leased the apartment, he did everything he could to manifest his intent to live there by changing his voters registration, his drivers license and by changing legal documents. He stated that by moving out of the Circle Drive property he did not manifest an intent to abandon his residence in Centralia. When the apartment was uninhabitable and when he sold his house he had to be somewhere temporarily, he stayed on a temporary basis in the house in Washington County but at that point he did nothing to abandon his residence. He referred to the statute 65 ILCS 5/3.1-10-5(c)(1) that addresses abandonment referring to more than a temporary removal from residence in the municipality. He stated that as soon as the leased apartment was able to be occupied, he moved into it. He occupies it and has done nothing to abandon his residence in the City. He had no control over the apartment becoming uninhabitable and had no other place to go for approximately 30 days. He stated the home in Washington County was only temporary. He stated that a point the City Attorney did not provide was that there was a period of time that the apartment that he intended to move into was uninhabitable. His intent was manifested by changing his address on the documents. He suggested looking at the test of residence as defined by the Illinois Supreme Court. He stated that there is no point that he ever surrendered his residency in Centralia. He referenced the 1940 Illinois Supreme Court Case, Park v. Hood. The Supreme Court stated that the question of residence is largely that of intent. He stated that Mr. Kuder never manifested an intent to be a resident anywhere other than Centralia. He stated that when he left his house, he rented an apartment and changed his address on the documents. The reason he was in Washington County for a short period of time was due to the event at the apartment that made it uninhabitable.
Mayor Ashby asked Attorney Gruenke, if following the statement of facts from Attorney Harvey, he had a different opinion or wanted to add anything. Attorney Gruenke stated that there is a temporary absence that is allowed. For example similar to the Rahm Emanuel case where he left Chicago, there was temporary absence and intended to come back. He stated that there is no question that if Mr. Kuder would have left his house at 5 Circle Drive and went back there, it would not have any effect on whether it was abandoned. He stated that there is a difference between the abandonment of the residence and the abandonment of residency. The abandonment of the residence clearly took effect at 5 Circle Drive. He stated that the question now is, where is the intended new residence to be established. He stated that he has not seen the voters registration. He stated that he asked their attorney to provide anything that he did not have and it was not provided. He stated that he did not see the voters registration or the drivers license change to examine them or review the dates. He stated that if they were done prior to Mr. Kuder moving then that could show his intent to be at the apartment address. Mayor Ashby asked if he still felt the same in regards to the PTAX and Mortgage that were signed. Attorney Gruenke stated that he did and the documents that he was given shows the intent at the apartment. Mayor Ashby stated that he doesn’t know everything, and he may have misstated that the Election Authority had the answer to this. He was thinking about the qualifications and what goes on. He stated that the local election authority is the City Clerk. He asked the Clerk if there was anything else to add. Clerk Enke stated that the Clerk’s duties pertaining to the election are complete once the ballot is certified with the counties. The ballot is passed on to the Counties and the voters are then able to vote. There is nothing else that she has to add. The Mayor asked the City Manager if he had anything else to add. The City Manager pointed out that the PTAX form provided, reflects the residence as the address on the PTAX. Mayor Ashby asked if anyone else on the Council had any questions. Councilman Sauer stated that some people had stated that the issue should not be considered by the Council. He stated that the law clearly makes it the responsibility of the Council to act on this. He stated that this should be resolved in the courts. He stated that there are risks involved. He stated there could be questionable votes in the future and his qualifications could be brought up in the years to come. He stated that Attorney Harvey is respected immensely and has persuaded Councilman Sauer in the past. He stated however he pointed out that he was referring to the 1940 Illinois Supreme Court Case they maximized the value of intent but noted that it was reduced later in 2011 Illinois Supreme Court Case. These are not legalities these are laws of the State of Illinois. In the 2011 Illinois Supreme Court Case, it refers to the intent to remain in that place as a permanent home. He added that he believes that Mr. Kuder that has lived in a 3 bedroom home, with his family, his wife and step child with possibly pets, is not intending to make a one bedroom apartment that he has just moved into his permanent home without his family. A motion was made by Councilman Sauer and seconded by Councilman Smith That This Council Determine First That Bryan Kuder Has Failed To Qualify For The Office Of Mayor Because He Did Not Meet The Residency Requirement Pursuant To State Statute And Second To Declare The Office Of Mayor Vacant As Of May 13, 2019, At The Time When The Council Is Seated. Councilman Marshall stated that the goals of the current and future Councils are to bring the community together. He stated that this is a tough vote. Councilman Smith stated that he agreed that the problem is that the Council has to move forward on the safe side for the future and this could be changed in the courts. He stated that this was not something that the Council went hunting for, it was brought to them and it is their responsibility to deal with it. He stated that Mr. Herrell has not told the truth in the past. Mayor Ashby stated that when taking an oath of office you agree to uphold the law. He stated the City Council is following their oath and the law as instructed by the legal counsel.
Ayes: Councilman Smith, Councilman Sauer, Councilman Marshall, and Mayor Ashby
Nays: None
Abstain: Councilman Jones
A majority of the Council voting aye, the motion carried.
UNFINISHED BUSINESS
None
REPORTS
City Treasurer Agee reported that he was notified by the Comptoller’s office that the City will be receiving payment for approximately $136,000 for water bills at the correctional center.
Councilman Sauer asked if the committee had been formed for the City Manager search. The City Clerk stated that she has not formed the committee but has begun putting together the ads to submit for the hiring process.
Councilman Jones stated that it is only his intent to serve out his remaining two years as Councilman.
A motion was made by Councilman Jones and seconded by Councilman Sauer to Adjourn the meeting to Closed session 5ILCS/120/2(C)(11), Litigation, When An Action Against, Affecting Or On Behalf Of The Particular Public Body Has Been Filed And Is Pending Before A Court Or Administrative Tribunal, Or When The Public Body Finds That An Action Is Probable Or Imminent Specifically A Civil Rights Law Suit Against A Centralia Police Officer And Former Centralia Police Officer.
Ayes: Councilman Jones, Councilman Smith, Councilman Sauer, Councilman Marshall and Mayor Ashby
Nays: None
A majority of the Council voting aye, the motion carried, and the meeting was adjourned at 7:38 p.m.
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