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Government LawyersThe newsletter of the ISBA’s Standing Committee on Government Lawyers

June 2007, vol. 8, no. 4

Attorney General issues opinions

 

Under section 4 of the Attorney General Act (15 ILCS 205/4 (West 2005 Supp.)), the Attorney General is authorized, upon request, to furnish written legal opinions to State officers and State’s Attorneys on matters relating to their official duties. The following is a summary of informal opinions I-07-001 through I-07-025 that may be of interest to the government bar. 

Copies of an opinion may be requested by contacting the Opinions Bureau in the Attorney General’s Springfield office at (217) 782-9070. Copies of official opinions may also be found on the internet at <http://www.illinoisattorneygeneral.gov/opinions/index.html>.

Informal No. 07-001
Issued January 4, 2007

Disposition of Surplus Moneys in the County Home Nursing Services Fund
Money held in a county health department’s home nursing services fund pursuant to section 5-25013 of the Counties Code must remain in the county health fund. Such moneys may not be transferred to the county’s general corporate fund unless the county health department is discontinued and its obligations satisfied pursuant to section 5-25017 of the Code. 55 ILCS 5/5-25017 (West 2004); 55 ILCS 5/5-25013 (West 2004).

Informal Opinion No. I-07-002
Issued January 11, 2007

Applicability of the County Ethics Ordinance to County Mental Health Board Employees
A county mental health board is a county agency created to administer the Community Mental Health Act. Thus, employees of a mental health board are considered employees of the county and are subject to the provisions of the county’s ethics ordinance. The ethics ordinance’s requirement that the county direct and control the material details of how an employee’s work is to be performed is intended to distinguish an employee from an independent contractor. 5 ILCS 430/70-5 (West 2004); 405 ILCS 20/2, 3a, 3b, 3c, 3e (West 2004).

Informal Opinion No. I-07-003
Issued February 8, 2007

Disposition of Local Registrar’s Fees under Vital Records Act
Because article VII, section 9(a), of the Illinois Constitution of 1970 prohibits payment of compensation to county officers from fees collected, the fee proceeds received by the county clerk as local registrar under sections 9 and 10 of the Vital Records Act do not constitute personal compensation and must be remitted to the county treasurer for deposit into the county treasury. Further, the fees collected pursuant to the Act do not constitute stipends, and, therefore, taxes need not be withheld. 50 ILCS 145/2, 315/1, 2 (West 2004); 55 ILCS 5/3-2003.4 (West 2004); 410 ILCS 535/7, 9, 10 (West 2004); Ill. Const. 1970, art. VII, §9. 

Informal Opinion No. I-07-004
Issued March 1, 2007

Game Breeding and Hunting Preserve as an “Agricultural Purpose”
Property that is licensed as a game breeding and hunting preserve by the Department of Natural Resources may constitute an “agricultural purpose” as that term is defined in section 5-12001 of the Code, if “animal [or] poultry husbandry” is “the principal activity on the land.” Whether animal or poultry husbandry is the principal activity on the land will be a factual determination based on the specific circumstances involved. 55 ILCS 5/5-12001 (West 2005 Supp.).

Informal Opinion No. I-07-006
Issued March 2, 2007

Compatibility of Offices–Village Commissioner and County Sheriff
The offices of village commissioner and county sheriff are incompatible because of a conflict in duties. 55 ILCS 5/5-1103.1 (West 2004).

Informal Opinion No. I-07-007
Issued March 8, 2007

Preservation of Evidence for Post-Conviction DNA Testing
A county may establish uniform procedures for preserving, tracking, and disposing of evidence that are consistent with the requirements of section 116-4 of the Code of Criminal Procedure of 1963 and any other applicable statutory provisions. 725 ILCS 5/116-4 (West 2004).

Informal Opinion No. I-07-008
Issued March 15, 2007

Composition of Emergency Telephone System Boards
(1) No more than one public member and one county board member may serve simultaneously on a five-member county emergency telephone system board in counties with a population of less than 100,000. (2) A second county board member may not be appointed to serve on a five-member emergency telephone system board in the capacity of “elected official.” (3) More than one public member, but only one county board member, may serve on an emergency telephone system board, if the total number of members on the board exceeds five. (4) A county board member may not serve on an emergency telephone system board in counties with a population of 100,000 or more. 50 ILCS 750/15.4(a) (West 2004).

Informal Opinion No. I-07-009
Issued March 16, 2007

Animal Control Act and Breed-Specific Bans
In the appropriate circumstances, a home rule unit is not prohibited, as an exercise of its home rule powers, from regulating or banning the keeping of specific breeds of animals, the language of section 24 of the Animal Control Act notwithstanding. 510 ILCS 5/24 (West 2004); Ill. Const. 1970, art. VII, §6(i).

Informal Opinion No. I-07-010
Issued March 21, 2007

Repayment of Lump Sum Distribution of Accrued Vacation and Sick Leave Time
A person who resigned as an employee of the Department of Nuclear Safety, and two days later became director of that department, could retain the lump sum distribution of accrued vacation and qualifying sick leave credits that he received upon his resignation from his first position. 30 ILCS 105/14a(c), (d) (West 2002).

Informal Opinion No. I-07-010
Issued March 21, 2007

State Officer’s Eligibility for Retirement Annuity and State Salary Paid Simultaneously
A person appointed as Director of Nuclear Safety by the Governor, with the advice and consent of the Senate, and who elected not to participate in the State Employees’ Retirement System, was eligible for the receipt of a retirement annuity and salary after the Governor made the Director of Nuclear Safety the Assistant Director of the Illinois Emergency Management Agency. 40 ILCS 5/14-103.05(b)(3), 14-103.09, 14-111 (West 2002); 20 ILCS 3310/45 (West 2004); Executive Order No. 2003-12, effective July 1, 2003.

Informal Opinion No. I-07-011
Issued March 22, 2007

Scope of Self Evaluation Exception to the Open Meetings Act
Subsection 2(c)(16) of the Open Meetings Act permits a public body to hold a closed meeting for purposes of self evaluation only when the body is meeting with “a representative of a statewide association of which the public body is a member.” Therefore, the self evaluation exception is necessarily limited to those public bodies that are members of such an association and applicable only when the body is meeting with a representative of that organization for the limited purposes of self evaluation. “Self evaluation” may include a variety of topics intended to assess or improve the performance of the public body, but does not include substantive business. 5 ILCS 120/2 (West 2004).

Informal Opinion No. I-07-012
Issued March 22, 2007

Award of City Contract to City Alderman’s Family Member
A city is not prohibited from awarding a contract to the son of a city alderman, provided the alderman has no financial interest in the contracting business of the son. Whether the son may rent equipment owned by the alderman to complete the project without creating a prohibited financial interest in the contract on the part of the alderman is a question of fact that must be determined from the surrounding circumstances. 50 ILCS 105/3 (West 2004); 65 ILCS 5/3.1-55- 10 (West 2004).

Informal Opinion No. I-07-013
Issued March 29, 2007

Community and Residential Services Authority Employment Policies
While the Community and Residential Services Authority (CRSA) is authorized to select and fix the compensation of those employees whom it deems necessary to carry out its powers and duties, for most purposes those individuals are employed under the auspices of the Illinois State Board of Education (ISBE). As ISBE employees, they are exempt from civil service coverage under the Personnel Code. To the extent that personnel policy issues are not controlled by ISBE rule or statutes applicable to all State employees (e.g., 30 ILCS 105/30c (West 2004) (deferred compensation agreements); 5 ILCS 400/1 et seq. (West 2004) (sick leave bank participation)), the CRSA may establish personnel policies related to compensation such as work hours, attendance, job classification, and leave time. 105 ILCS 5/14-15.01 (West 2004).

Informal Opinion No. I-07-015
Issued April 2, 2007

Eavesdropping - Police Use of Audio-Video Feature on Taser Stun Guns
A taser equipped with audio and video recording capabilities is an eavesdropping device. Consequently, its use is prohibited in the absence of consent by all parties to the recorded conversation or an applicable statutory exception. 720 ILCS 5/14-1 (West 2004); 720 ILCS 5/14-2, 14-3 (West 2005 Supp.).

Informal Opinion No. I-07-016
Issued April 3, 2007

Audit of State University Foundations, Alumni Associations, and Athletic Associations 
Although university foundations, athletic associations, and alumni associations are “State agencies” for purposes of the Illinois State Auditing Act, the private, non-public funds of those organizations are not “public funds of the State” for purposes of that Act. As a result, those funds are not subject to audit by the Auditor General. However, because the Accountability for the Investment of Public Funds Act includes a more expansive definition of “public funds,” those organizations are subject to the Internet disclosure requirements of that statute. 30 ILCS 5/1-7, 1-18 (West 2004); 30 ILCS 237/5 (West 2004); Ill. Const. 1970, art. VIII, §3.

Informal Opinion No. I-07-017
Issued April 4, 2007

Change in Number and Manner of Selection of County Commissioners
Pursuant to section 2-4006.5 of the Code, a county may not submit a referendum to change the membership of the county board in a commission county or their method of selection subsequent to August 31, 2001. Because the referendum submitted to the voters of Johnson County on March 21, 2006, was not authorized by statute, a proposition to reestablish the election of three county commissioners at-large is unnecessary. 10 ILCS 5/28-7 (West 2004); 55 ILCS 5/2-4006.5 (West 2004).

Informal Opinion No. I-07-018
Issued April 12, 2007

State’s Attorney Authority to Advise Local Emergency Planning Committees
(1) The State’s Attorney has no general duty to advise a Local Emergency Planning Committee (LEPC) and its members. (2) Because the State’s Attorney is a State officer, the representation and indemnification of the State’s Attorney is governed by the Indemnification Act, not the Tort Immunity Act. Whether the State’s Attorney qualifies for representation and indemnification will depend on the specific facts of the case. 42 U.S.C. §11001 et seq. (2000); 5 ILCS 350/1(West 2004); 55 ILCS 5/3-9005 (West 2004); 430 ILCS 100/1 et seq. (West 2004); 745 ILCS 10/1-206 (West 2004).

Informal Opinion No. I-07-019
Issued April 19, 2007

Authority of Circuit Clerk to Assess the Arrestee’s Medical Costs Fund Charge
The circuit clerk is authorized to assess the Arrestee’s Medical Costs Fund charge against a qualifying criminal defendant only pursuant to a court order. The nature and contents of that order are within the discretion of the court. 730 ILCS 125/17 (West 2005 Supp.), as amended by Public Act 94-962, effective January 1, 2007.

Informal Opinion No. I-07-020
Issued May 3, 2007

State Officials and Employees Ethics Act and Whistle Blower’s Belief in Truth of Information Reported
In order to benefit from the whistle blower protections in section 15-10(1) of the State Officials and Employees Ethics Act, one who threatens to disclose or discloses an activity, policy or practice which is a violation of the Act must reasonably believe the truth of the information disclosed. 5 ILCS 430/15-5, 50-5 (West 2004); 720 ILCS 5/26-1 (West 2004).

Informal Opinion No. I-07-021
Issued May 3, 2007

Expenditure of County Funds for Materials Bearing Name of County Sheriff
Fingerprint identification card kits purchased by the county sheriff in order to provide the information required by section 3 of the Minor Identification and Protection Act constitute materials necessary for the sheriff to perform his or her official duties. As such, they may be purchased using county funds. The presence of the sheriff’s name on the kits without more does not constitute election interference as that term is used in Illinois law. Accordingly, county funds may be expended for the purchase of those materials necessary to provide fingerprint identification cards to parents who request the fingerprinting of their children, which would include fingerprint identification card kits containing the county sheriff’s name. 10 ILCS 5/9-25.1 (West 2004); 55 ILCS 5/3-6032 (West 2004); 325 ILCS 45/3 (West 2004).

Informal Opinion No. I-07-022
Issued May 3, 2007

Freedom of Information Act and HIPAA
It is possible for a public body that is a covered entity for HIPAA purposes to comply with both the Freedom of Information Act (FOIA) and the HIPAA Privacy Rule. Each request for a public record that includes protected health information must be analyzed on a case by case basis to determine which FOIA exemptions may apply and whether disclosure is authorized under the HIPAA Privacy Rule. 42 U.S.C.A. §1320d et seq. (West 2003); 5 ILCS 140/3 (West 2005 Supp.), as amended by Public Acts 94-931, effective June 26, 2006; 94-953, effective June 27, 2006; 94-1055, effective January 1, 2007); 45 C.F.R. pts. 160, 164 (2006).

Informal Opinion No. I-07-023
Issued May 10, 2007

Illinois Conservation Foundation as a “State Agency”
The Illinois Conservation Foundation is a “State agency” as that term is defined in the State Auditing Act, the State Officers and Employees Ethics Act and the State Comptroller Act. Further, it is a “board * * * authorized or created by State law” for purposes of the Ethics Act. 5 ILCS 430/1-5, 5-55 (West 2004); 15 ILCS 405/7 (West 2004); 20 ILCS 880/1 et seq. (West 2004); 30 ILCS 5/1-7 (West 2004).

Informal Opinion No. I-07-024
Issued May 10, 2007

County Board Control of Supervisor of Assessments
(1) The county board can impose additional duties and powers on the supervisor of assessments by ordinance and subsequently alter these duties and powers. (2) The county board cannot divest the supervisor of assessments of the duties and functions vested in him by law such that the county board controls the day to day operations of the supervisor’s office. (3) Once the budget and appropriation ordinance for the office of the supervisor of assessments has been adopted, the county board cannot change that budget in order to control the supervisor’s performance of his duties. 35 ILCS 200/3-10, 3-30, 3-40, 9-15, 9-35 (West 2004); 55 ILCS 5/5-1016, 5-1087, 5/1106, 6-1001, 6-1002, 6-1003 (West 2004); Ill. Const. 1970, art. VII, §4(d).

Informal Opinion No. I-07-025
Issued May 10, 2007

Expenditure of Public Funds to Build a Community College Campus
Non-home-rule counties are not authorized to make an outright gift of public funds to a local group for the construction of a community college campus. Ill. Const. 1970, art. VII, §1.

Informal Opinion No. I-07-025
Issued May 10, 2007

County Fair Board as a Public Agency under the Intergovernmental Cooperation Act
A not-for-profit corporation, such as the Fayette County Fair Association, is not a “public agency” under the Intergovernmental Cooperation Act. 5 ILCS 220/2 (West 2004).


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