My name is Lynn Fazekas, and I’m running a write-in campaign for the Office of DeKalb City Clerk.
Lynn Fazekas
However, I also stand out from the others in significant ways.
One difference is extensive management experience. I’ve been a program manager, case manager and office manager. Management skills, of course, are important when it comes to evaluating processes and making improvements, and the next clerk will find them to be especially critical since he or she will be limited to no more than 12 hours per week or risk violating state minimum wage laws.
Additionally, I approach the office not just as a potential clerk, but also as a customer who has not always been pleased with results. I’ve talked to others who feel the same way and have concluded that “business as usual” is not an option. If I’m elected clerk there will be changes, beginning with an explicit mission to improve customer services.
The third difference is a local issues website, the blog City Barbs, which I’ve run as a volunteer for seven years. City Barbs demonstrates a comfort level with technology that the DeKalb clerk’s office has never seen, as well as my commitment to bringing you information about local government you won’t find anywhere else. No one shares this track record. I envision bringing in talented interns to help lead the office into the 21st century, and I want to show you as never before how your money is being spent – even if I have to start another independent website to do it. Bid awards, vendor contracts and a fully searchable check register top the to-do list in this area.
As some of you already know, an accident nearly prevented me from running for office this year (which is how I ended up a write-in candidate). Rest assured that my recovery remains steady and I will have plenty of energy to implement plans to make your city clerk’s office better.
Please help me turn plans into reality. I would be grateful for your write-in vote during the early voting period or at your polling place April 9.
Find out more about me at the Daily Chronicle’s Election Central and on Facebook.
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21 Comments
(65 ILCS 5/3.1-35-90) (from Ch. 24, par. 3.1-35-90)
Sec. 3.1-35-90. Clerk; duties.
(a) The municipal clerk shall keep the corporate seal, to be provided by the corporate authorities, and all papers belonging to the municipality the custody and control of which are not given to other officers. The clerk shall attend all meetings of the corporate authorities including executive sessions and keep a full record of their proceedings in the journal, except if the clerk is the subject matter of the meeting and his or her presence creates a conflict of interest. The record of those proceedings shall be made available for public inspection within 7 days after being approved or accepted by the corporate authorities as the official minutes of their proceedings.
(b) The municipal clerk shall have other duties prescribed by the corporate authorities.
(c) Copies of all papers duly filed in the clerk’s office and transcripts from the journals and other records and files of the clerk’s office, certified by the clerk under the corporate seal, shall be evidence in all courts in like manner as if the originals were produced.
(Source: P.A. 96-294, eff. 8-11-09.)
(65 ILCS 5/3.1-35-95) (from Ch. 24, par. 3.1-35-95)
Sec. 3.1-35-95. Deputy clerks.
(a) A deputy clerk may execute all documents required by law to be executed by the municipal clerk and may affix the seal of the clerk wherever required. In signing any document, a deputy clerk shall sign the name of the clerk followed with the word “By” and the deputy clerk’s own name and the words “Deputy Clerk”.
(b) Except in municipalities with a population of 500,000 or more, the powers and duties of a deputy clerk shall be exercised only in the absence of the clerk from the place where the clerk’s office is maintained, and only when either written direction has been given by the clerk to that deputy to exercise a power or the corporate authorities have determined by resolution that the municipal clerk is temporarily or permanently incapacitated to perform that function. In municipalities with a population of 500,000 or more, the powers and duties of a deputy clerk shall be exercised upon the direction of the clerk, or when the corporate authorities have determined by resolution that the clerk is temporarily or permanently incapacitated to perform those functions and duties. When a deputy’s signature is duly authorized as provided in this Section and is affixed by a deputy in the manner prescribed in this Section on any document (including but not limited to contracts, bonds, or other obligations of the municipality), the document shall have the same effect as if the document had been signed by the municipal clerk in person.
(Source: P.A. 87-1119.)
The following section of the Municipal Code indicates it is the elected clerk who appoints deputies. I do not see from law where the municipality itself can appoint a deputy clerk. The municipality could pass a resolution determining the elected clerk to be incapacitated (unknown to me if such resolution exists concerning Kapitan), but even with such resolution, municipality would have to assign incapacitated clerk’s duties to an EXISTING deputy previously appointed by the now “incapacitated by resolution” elected clerk (in this example, Kapitan). And I thought Kapitan had much earlier done away with the deputy clerk position?
So who hired/appointed the current deputy clerk?
The municipality can prescribe “other duties” (Sec. 3.1-35-90b) of the clerk and limit the number of deputies (Sec. 3.1-30-10b) the clerk appoints, but it is the elected clerk who appoints, not the municipality.
If the city did not get Kapitan to appoint a deputy before his resignation, and instead had the city manager appoint a deputy, and/or if city failed to create a resolution stating Kapitan was incapacitated before transferring elected clerk authority to a previously appointed by the elected clerk deputy, then they violated the law as I understand it.
(65 ILCS 5/3.1-30-10) (from Ch. 24, par. 3.1-30-10)
Sec. 3.1-30-10. Deputy clerk.
(a) In municipalities with a population of 500,000 or more, the municipal clerk may appoint the number of deputy clerks necessary to discharge the functions and duties of the office of municipal clerk.
(b) In municipalities of less than 500,000, the municipal clerk, when authorized by the corporate authorities, may appoint the number of deputy clerks necessary to discharge the functions and duties of the office of municipal clerk, who need not be a resident of the municipality. The corporate authorities of the municipality may limit the number of deputy clerks that the municipal clerk may appoint.
While looking for something else today, I stumbled across a section of statute referenced in the Illinois Election Law Handbook, 65ILCS 5/3.1-1–50, which appears to grant power to “municipal authorities”, usually the mayor, to fill vacancies in elected offices. The rules are slightly different for various elected positions, but generally allow mayoral appointment to fill most vacated elected positions under various conditions.
Interestingly, the clerk is involved in the process itself, so what one does when its the clerk’s position vacated is unknown to me…I also don’t completely know or understand the circumstances of Steve Kapitan’s leaving the office.
I haven’t been able to spend enough time yet to see how this new to me statute language dovetails with what law I found and posted earlier, but for now I retract my statement that the city may have illegally appointed a deputy clerk. At this point, I just am not sure one way or another. More to learn.
I hope the clerk candidates have consulted a qualified attorney on whether or not the city’s handling of Kapitan’s elected clerk position was correct.
Kerry, from what I have read there is nothing in the local municipal code concerning permanent vacancy in the city clerk position, as one would normally expect to see. This type of wording should appear in Chapter 3 with the rest of the city clerk information, so the code needs to be updated concerning this issue. Here is a link to Chapter 2 regarding Alderman vacancies.
http://cityofdekalb.com/CityClerk/Municipal%20Code/Chapter%2002.pdf
Section 2.03 – Filling Alderman Vacancies – “Pursuant to Article VII, Section 6 (f) of the Constitution of the State of Illinois (1970) and a Referendum Election held pursuant to Illinois Compiled Statutes, (65 ILCS 5/28-4), when vacancies in the office of alderman are occasioned by reason of resignation, failure to elect or qualify, death, permanent physical or mental disability, conviction of a disqualifying crime, abandonment of office or removal from office or of residency from ward, the City Council shall call a special election to fill said vacancy if at the occurrence of said vacancy, the unexpired term was more than eighteen (18) months in length; and if the unexpired term is eighteen (18) months or less in length, the Mayor may, with the advice and consent of the City Council, appoint a person to serve as alderman in the vacancy until the next general election.”
So I think we have a case of “what is not prohibited, is allowed by default”, if the city manager appointed the city clerk replacement.
In the case of a vacancy for an elected position, consideration should be given to the second place runner-up in the elections, otherwise the city council and mayor should choose the replacement official from a pool of candidates by majority vote. In the case of a vacancy for an appointed position, the replacement for deputy city clerk would be chosen by the city clerk, the replacement for assistant city manager would be chosen by the city manager, and so on. This would prevent the possible conflict of interest we currently have with the city manager or mayor appointing replacements for elected officials unilaterally without the advice and consent of city council.
United States Constitution, Article 1, Section 2, Clause 4: Vacancies
“When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.
… when vacancies occur in the House of Representatives, it is not the job of the House of Representatives to arrange for a replacement, but the job of the State whose vacant seat is up for refilling. Moreover, the State Governor may not appoint a temporary replacement, but must instead arrange for a special election to fill the vacancy. The original qualifications and procedures for holding that election are still valid.” 😉
After further consideration, I think the best solution would be to have the elected official appoint a replacement – a vice president of sorts. The replacement official would only serve in office if the elected official permanently vacates the office to which they are elected. This way the elected official can select a replacement that best fits their position on the various issues, and the electors or voters can expect the same type of government for which they originally elected into office.
Would both of you please publicaly state the hours you plan on being available to those who elect you to this office. Please be specific and tell us voters the hours you, yourself, plan on being in the clerks office to meet with the citizens. No cop outs by saying there will always be a Deputy in the office. I would like to know the exact hours you plan on working and being available to the public if you are elected. Also who will schedule the hours, work conditions and general management responsibilities of all the Deputies. Will it be the elected Clerk or the city manager? Also one more question. Would you Deputize someone if ordered to do so be the city manager if you felt the person was not right for the position?
I plan to be in the office Monday, Wednesday, Thursday, Friday from 3 p.m. until at least 5 p.m. (and some of those days, I may be in the office at 1:00 p.m., but generally 3) On Tuesdays, I will be in the office from 8:30 a.m. to 11:30 p.m., and of course I will be present at all City Council meetings. I will also be available by appointment other times, if necessary. The full-time deputy will work 8:30 a.m. to 5:00 p.m. Monday through Friday. The part-time deputy will only be present at meetings and the time that it takes her to do the minutes. I will not be forced to hire a deputy that I feel is not right for the position. At least one of those days per month, I plan to have a staff meeting. Since I won’t be working as many hours as the deputies, I will need to be kept up to speed with what is happing in the office, and I will always be available to the staff by cell phone.
Ms. Peerboom, if elected and it happens that Maple Park and DeKalb have meetings on the same night, which do you attend?
They will never have meetings on the same night. Regular and Committee of the Whole meetings are on Tuesday nights. For any other meetings, they are very accommodating of staff and their schedules. Most of the staff is part-time, so they make sure that they work around schedules.
Good questions, Pevo. I have yet to read or hear a solid response from anyone as to my earlier perspective in this blog about what the Illinois Constitution and Illinois Revised Statutes (Municipal Code) say as to empowerment of the elected clerk.
It seems to me, from my reading the applicable documents I am aware of, that the city has overstepped and quite likely the appointment of a full time deputy clerk by the city manager is illegal under the circumstances as I know them. So far, I have not been shown a home rule referendum result allowing for the city to sidestep the default authority (see my much earlier comments at DCO as defined in the municipal code). I hope these candidates know what they are doing and have truly obtained solid legal advice, but so far I remain unconvinced. Perhaps we will learn more at the League’s event Wednesday night?
Pevo, while reserving the right to scope out the “lay of the land” before saying for certain, I will mention that the comment I hear most is that people would really like to be able to come in on their lunch hours and be sure to find someone there. So, at this point I envision being in the office 11-1 most days and piloting some evening hours as well.
As to the rest, well, I’m not going to borrow trouble I don’t already have. I anticipate that I will be the one deputizing, firing and scheduling deputies and will deal with obstacles when and if they arise.
I will also make regular reports to the public. At this point I’m not sure of the forum or format, but you will definitely know what’s going on.
As an elected City Clerk, I would be operating on the advised of the City Attorney. This is a quote from an e-mail that I received from City Attorney Dean Frieders this afternoon (it is also the same opinion that I got from Municipal Clerks of IL Law Firm Ancel Glink:
“A direct quote from the state regulations:
” “Employee” means any individual permitted or suffered to work by an employer…In the case of an individual employed by a public agency, such term means any individual employed by the State of Illinois or any of its political subdivisions except for an individual who is a bona fide elective or appointed official.” (Emphasis added).
Accordingly, an elected official such as the City Clerk (or for that matter, an appointed City Clerk) is exempt both from FLSA overtime regulations and state minimum wage laws. That is how I have advised the City on this issue, and will continue to do so. I am hopeful that if any candidates have misconceptions about the applicable regulations or the work that the City Clerk does, they will follow up with the City and/or undertake their own investigations so that they are fully informed of the obligations that they face upon election.”
I respect the opinions that I received from these two attornies.
Please see my response to Pevo. I think you candidates are arguing the hours/pay/overtime issue ahead of the more fundamental issue of whether or not the City of DeKalb has overstepped and created an illegal full time deputy clerk position. This is the issue which must be resolved first. Likely, the hours/pay issue will be moot if its determined that the city acted (ordinance) without statutory authority to create the full time deputy clerk position.
Once again, I request you (anyone) to show me the referendum under home rule authority that could have created alternate authority for the city to appoint a deputy clerk rather than the default authority statutorily granted to the elected clerk to appoint deputies, (although even so only for limited circumstances in the temporary absence of the elected clerk). Where is that necessary home rule referendum?
I really have no desire to argue the hours/pay issue at this time and only mentioned it here in the context of a) explaining why management skills are so crucial and b) offering an example of what many are calling the “neutering” of an elected office. Rest assured that, if elected, I will consult with the highest authorities available on this and any other issue necessary to ensure compliance with the law.
I whole heartedly agree with Lynn.
This is what happens when things are rushed. Sounds like an elected is exempt from being paid pvertime but not exempt from minimum wage. Sounds like 12 hours is the magic number per weekweek. If the elected clerk puts in 13 hours the city is in violation of the minimum wage law. Instead of limiting the new elected clerks position to $5,000.00 annually the city manager should have offered a more realistic payment schedule for this new position they created in last minute haste. I for one feel if the elected clerk is performing necessary hours she/he should get paid for it and at the same price the appointed by city manager clerk is getting paid. After all the voters put that clerk into office by voting not as a end around like our mayor and city council pulled against the voter’s wishes.
Exemptions for those performing executive/professional functions are based on a minimum salary of $455 per week (might be different for legislators). The salary set for the next DeKalb clerk comes to about $96 per week. Minimum wage applies. The only question is whether performance of the clerk’s statutory duties exceeds 12 hours per week.
Section 3(e)(2)(c) of the FLSA exempts elected officials from minimum wage and overtime provisions of the statute when they are performing their elected duties. Just wanted to let you know.
Thanks!
Section 3(e)(2)(c) pertains to overtime.
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Although the city manager is responsible for “authorizing” the selection of potential deputy city clerks, I don’t see anything in the code about the city manager “appointing” the deputy city clerk, as has been mentioned by Kerry Mellott in the comments of this article.
Here is a link to Chapter 3 codified regarding the city clerk issue.
http://www.cityofdekalb.com/CityClerk/Municipal%20Code/Chapter%2003.pdf
Section 3.14.i – “From the City personnel and staff who are authorized by the City Manager to work in the City Clerk’s office, the Clerk may appoint one or more Deputy Clerks from time to time, who shall be responsible for the proper discharge of any duties undertaken by said Deputies to the same extent as if done by the City Clerk personally.”
Does the city manager currently have the authority to “appoint” the deputy city clerk, and this code is out of date? If anyone could clarify, it would be appreciated.
Also, I am trying to find the oath of office for elected and appointed city officers. I was unable to find the oath by doing a search for “oath” at the city website. I find both an oral oath and written oath in the Illinois Municipal Code, and the following is an example of a written oath.
http://codes.lp.findlaw.com/ilstatutes/20/3305/20