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

December 2007, vol. 9, no. 2

2007 legislative summary

The 2007 spring legislative session convened on January 10. After the new members were installed, the 95th General Assembly wasted no time in introducing an assortment of new legislation. The following is a summary of some of the more controversial bills and public acts affecting government lawyers as of print time. Thus, the list is not all-inclusive, nor is it a roster of bills favored or opposed by our Standing Committee, but is intended to alert Committee members and other readers of the newsletter to legislation that may be of particular interest to them.

For those bills that the Governor has signed into law when this edition went to print, public act numbers are provided. The governor has 60 days upon receipt of a bill to veto, amendatorily veto, or sign it into law. Signed laws become law on the effective date of the legislation. Bills that were vetoed or amendatorily vetoed were considered in the fall legislative session, which this year took place on October 2-4 and 10-12.

Office of Administrative Hearings

Although this proposal is considered dead, it is worthy of mention since it has been around the Statehouse in some form or another for over 10 years. Moreover, if the legislation is ever enacted, it will affect a large number of State government lawyers. Senate Bill 58 (Harmon, D-Oak Park) would have created the Office of Administrative Hearings. The panel would conduct hearings for all agencies under the jurisdiction of the Governor, except for 10 specialized boards and commissions. The proposal has always generated a spirited debate among legislators and our own Committee members. Several years ago, the measure cleared the Senate but died in the House Rules Committee. Look for yet another version of the bill to appear next January.

For those wanting to know more about the history and advantages of centralizing the State’s hearing function, I would direct you to the March 1999 (Vol. 28, No. 4) issue of Administrative Law, the newsletter of the ISBA’s Administrative Law Section Council. The entire edition was devoted to an analysis of the topic. It provides a list of the other states that have a central hearings panel and a bibliography of other articles on the subject. Contact the ISBA offices, if you would like to review the newsletter.

Open Meetings

What legislative session would be complete without a controversial proposal or two to the Open Meetings Act? This year, several key amendments to the law were proposed, but only one of any significance became law. Among the proposals was House Bill 210 (Sacia, R-Pecatonica). It would have prohibited a public body from voting on an item that was not included on the meeting agenda that was posted for that meeting. At first glance, the bill appeared to codify theRice v. Board of Trustees of Adams County, 326 Ill.App.3d 1120, 762 N.E.2d 1205, 261 Ill. Dec. 278 (2002), decision where the court held that under the Act the consideration of an item not specifically set forth on the meeting agenda may include discussion of and deliberation of an item, but does not include voting or taking other action. The measure was assigned to the House State Government Administration Committee and re-referred to the House Rules Committee.

Other bills attempted to limit or even eliminate the compensation of members who attend meetings by “electronic means.” A perfect example was House Bill 183 (Dunn, R-Naperville). Two years ago, the General Assembly passed Senate Bill 585, enacted as Public Act 94-1058, which allows members of public bodies to attend meetings by electronic means under certain circumstances. This new proposal would have added “vacation” to the list of reasons why a public body could permit a member to attend by means other than physical presence. But the bill went one step further and provided that a member attending by other means due to vacation is not eligible to receive pay or compensation based on that electronic attendance. This proposal was assigned to the House Executive Committee and re-referred to the House Rules Committee.

A more far-reaching piece of legislation (Hultgren, R-Wheaton) was Senate Bill 420. It would have prohibited per diem payments to members of a public body with statewide jurisdiction who attend meetings but are not physically present. The Hultgren proposal also provided that e-mail distribution of material to the members of a public body for individual use would not have been a violation of the Act. E-mail communications among members of a public body and when they trigger the requirements of the Act are a hot topic and the subject of many legal writings. This bill passed the Senate 58-0, was assigned to the House Executive Committee, and re-referred to the House Rules Committee.

Finally, House Bill 1670 (Pritchard, R-Sycamore) addressed the quorum requirement for a five-member public body. Before the legislation, under the Act, the definition of a “meeting” contained four important elements: (1) a gathering; (2) in person or by other means of contemporaneous interactive communication; (3) of a majority of a quorum of the members of the public body that is; (4) held for the purpose of discussing public business. A quorum is a majority of a body’s members. Thus, in the case of a five-member panel, a majority of a quorum was just two members. This meant that two members could not legally discuss public business outside a meeting even if they saw one another casually on the street. The bill addressed this issue by providing that for a five-member public body, a meeting is a gathering of a quorum for the purpose of discussing public business, and three members constitute a quorum. The House and Senate both passed the bill unanimously which the Governor approved on August 17, 2007. Public Act 95-245 took effect the same day.

Freedom of Information

Another topic of interest to some government lawyers is the Freedom of Information Act. House Bill 511 (Joyce, D-Worth) would have amended the law by redefining the term “public records” to include a settlement agreement entered into by or on behalf of a public body. Although it would exempt personal identifying information and all other information excluded by section 7 of the Act, the identities of the parties to the settlement and the financial and material terms of the agreement would remain public. The proposal easily passed the House (100-15) but was never assigned out of the Senate Rules Committee.

Governmental ethics changes

Numerous bills were introduced to address what some perceived as loopholes in existing ethics and gift laws. Some of the more interesting proposals follow.

With respect to the disclosure of gifts in statements of economic interests, Senate Bill 36 (Dillard, R-Westmont) would have required that: (i) gifts given to the spouse of the person making the statement and to immediate family members living in the same household be considered gifts to the person making the statement; (ii) gifts from persons and entities be disclosed; and (iii) the nature and value of each gift be specified. The bill was never assigned out of the Senate Rules Committee.

House Bill 3478 (Crespo, D-Streamwood) would have required (i) each officer, member, and State employee who receives a gift excepted from the gift ban as an educational mission or as travel expenses for a meeting to discuss State business and (ii) each officer and employee of a governmental entity who receives a gift excepted from the provisions of an ordinance or resolution that are equivalent to the State exceptions, to submit certain information about the travel to the Secretary of State within 30 days after returning from the trip. The measure was assigned to the House State Government Administration Committee and re-referred to the House Rules Committee.

Senator Dillard also sponsored Senate Bill 742 which would have prohibited an officer, member, or State employee, for one year after most recently commencing State service, from knowingly participating in procurement, regulatory, or licensing decisions directly related to a person or entity that employed or compensated that person, or his or her spouse or certain family members, during the year before State employment began. The bill was never assigned out of the Senate Rules Committee.

Whistleblower Act

The 2004 Whistleblower Act provides that an employer, other than a governmental entity, could not make, adopt, or enforce a law, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency if the employee had reasonable cause to believe that the information discloses a violation of State or federal law. Similarly, the employer can not retaliate against an employee for disclosing the information or refusing to participate in an activity that violates any law.

A violation of the law is a Class A misdemeanor. An aggrieved employee may bring a civil action against the employer for any and all relief including reinstatement, back pay with interest, and compensation for any damages sustained as a result of the violation.

House Bill 742 (Fritchey, D-Chicago) amended the current Act to provide that the term “employer” includes the State or any political subdivision of the State, and a unit of local government, school district, or authority including a department, division, bureau, board, commission, or other agency of these entities, and any person acting within the scope of his or her authority, whether express or implied, on behalf of those entities in dealing with its employees. The bill provides for the preemption of home rule authority and makes it unlawful for an employer to knowingly take an adverse action against an employee for disclosing information in a court or administrative hearing, legislative proceeding, or other type of proceeding if the employee has reasonable cause to believe the information discloses a violation of State or federal law or regulation.

The bill won unanimous support in both legislative chambers. The Governor signed the bill on August 13, 2007. Public Act 95-128 becomes effective on January 1, 2008.

Identity Protection

House Bill 573 (Munson, R-Elgin) would have established the Identity Protection Act. The proposal prohibited a State or local government agency from using an individual’s social security number in certain ways, subject to various exceptions. Each State or local government agency was required to develop and implement an identity protection plan. It provided that any employee of a State or local government agency who intentionally violated the Act was guilty of a misdemeanor. The measure preempted home rule authority. The bill sailed through the House (113-0), was assigned to the Senate Executive Committee, and re-referred to the Senate Rules Committee.

You can track the status of any legislative proposal by accessing the General Assembly homepage at www.ilga.gov and clicking on “Bills and Resolutions” and then the specific bill number. Or, the General Assembly has a free service to track legislation called “My Legislation.” Go to the homepage, click on “My Legislation,” and follow the directions.
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The author is Assistant General Counsel of the Illinois Department of Revenue. He is currently a member of the Standing Committee on Government Lawyers and serves as its Legislative Subcommittee Chair.


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