PAXTON — A survey that Ford County Board members have been asked to complete to determine any potential conflicts of interest they may have with voting on proposed new regulations for wind farms is being met with a mix of compliance and defiance.

Five of the board’s 12 members — Debbie Smith of Paxton, Tim Nuss of rural Roberts, Ann Ihrke of rural Buckley, Tom McQuinn of rural Paxton and Cindy Ihrke of rural Roberts — enlisted an attorney last month to advise them on whether they should complete the survey as had been requested by State’s Attorney Andrew Killian and the board’s chairman, Bob Lindgren of rural Loda.

On Oct. 28, the attorney, Phillip Luetkehans, wrote a letter stating that the five board members would not be answering the survey. He said it was his opinion that neither Killian nor Lindgren “may require any board member to answer the survey,” adding that “any board member answering (it) would put at risk future lawful actions to be taken by the board because answering the survey would require board members to speculate on a hypothetical situation which has not been presented to the board and allow the survey to improperly affect future zoning decisions.”

As of Monday, only three board members had completed the survey and returned it to Killian.

Last month, Lindgren asked Killian to conduct the survey to determine whether any conflicts of interest exist prior to the board voting on the proposed new regulations for wind farms.

“This came up after suggestions were made to me that Chairman Lindgren and another member (Jason Johnson of rural Paxton) may have conflicts disqualifying them from voting on the proposed amendments,” Killian wrote in an Oct. 18 letter to board members. In the letter, Killian noted that failure to disclose a conflict could result in criminal or civil penalties and/or nullification of the vote.

Participation in the survey is voluntary, Killian said. The survey asks board members, among other questions, whether they own or rent property in the county that may be affected by the proposed new rules, including property that could occupy a wind turbine, property that falls in the footprint of a proposed wind farm, or property that borders another property that could occupy a turbine. For those who do, the survey asks whether the board member believes that the proposed rule changes will affect their income or their property values in either a “positive or negative” way.

Attorney’s arguments

Luetkehans — who represented the Ford County Citizens for Property Rights as the proposed new wind-farm rules were considered by the county’s zoning board of appeals last fall — argued in his Oct. 28 letter that, under the state’s Public Officer Prohibited Activities Act, “a conflict would only arise if a board member held a contract which could be affected by a vote of the board member.” The survey, however, asks board members not just whether they have such a contract in place but to “speculate on whether they might have a conflict of interest in the future if the board votes” on the proposed rules.

“In short, the survey attempts to create the appearance of a conflict of interest where none exists,” Luetkehans wrote, noting that it would be “improper” for a board member to “speculate on such a hypothetical.”

Luetkehans argued that survey questions regarding the proposed rule changes affecting property values, if answered, “would force one to hypothetically prejudge whether a particular (wind farm) project would negatively affect property values,” when, he noted, “no one can know the answer to that question without knowing the exact locations of any wind turbines ...”

“To attempt to argue a conflict of interest on this type of vote would restrict any board member that owned property in the unincorporated area of Ford County from ever voting on any text amendment (to zoning ordinances) that could permit or restrict particular uses — whether it be because it could diminish property values or could lessen the types of sizes of uses they could place on their property,” Luetkehans said. “In fact, to follow this alleged rationale to its logical conclusion, no board member that lived in the unincorporated areas of Ford County would ever be able to vote on setbacks, height restrictions or permitted uses.”

Killian responds

In response, Killian wrote a letter on Nov. 8 to Luetkehans, arguing that “there is nothing inappropriate about either the request from Chairman Lindgren or the survey prepared.”

In a subsequent email to the Ford County Record, Killian summarized his response letter:

“In a response to that attorney, I questioned his conclusion that only members with signed contracts have a conflict of interest. His analysis failed to address common-law conflicts of interest. I provided him citations of two Illinois Attorney General opinion letters dealing with that issue, and in one instance, the state’s attorney (of a county) was specifically charged by the attorney general with reviewing a board member’s specific circumstances to determine if there was a conflict.

“I further disagreed with his statement that disclosing a potential conflict of interest in the survey creates a conflict of interest. I used the analogy that a person has a medical condition, like cancer, regardless of whether they disclose it. A person either has a conflict or they don’t. Ignoring the conflict will not make it go away any more than ignoring a cancer diagnosis will make it disappear. I also pointed out that if a board member disclosed a potential conflict that, upon further analysis, it may turn out that the issue is not in fact a conflict that would prohibit the member from acting on the proposed amendments.

“I (also) pointed out to him that contrary to his suggestion that action on the proposed (wind farm ordinance) amendments was ‘hypothetical,’ the county board has been working on this issue for two years. To suggest that a conflict of interest only needs to be examined after voting on the (wind farm ordinance) amendments makes no sense. The citizens of Ford County have the right to know whether, when board members speak in favor or opposition of one amendment or another, that board member has a conflict that might affect their position.

“The attorney general, in one of the letters issued, indicated that if a county board member ‘is disqualified from acting or voting upon a matter before the entire board, it would be illogical to permit him to advocate for its adoption before his fellow board members at a committee meeting. To do so would permit the county board member to do indirectly that which he or she is prohibited by the common law from doing directly.’

“The purpose of a conflicts review is to determine whether a county board member puts themselves in a position of liability for taking action when they should abstain. It is to make sure that the final vote, when tallied, is safe from judicial nullification. As the attorney general notes, a ‘public officer must consider abstention from action even though he or she may not technically be disqualified from acting ... in order to preserve the public’s confidence in the body which the officer serves. A perception of impropriety may be as damaging to public confidence as an actual conflict of interest.’

“The citizens of Ford County deserve finality in whatever action the board takes on the (wind farm ordinance) amendments, and a member’s failure to recognize a conflict of interest jeopardizes that finality.”